Chandler v. Colvin

Filing 24

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 6/22/2015. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LINDA CHANDLER,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 14-00242-B

ORDER
Plaintiff
judicial

review

Linda
of

Chandler
a

final

(hereinafter
decision

of

“Plaintiff”)
the

seeks

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.
consented

to

have

the

proceedings in this case.

On May 14, 2015, the parties

undersigned
(Doc. 18).

conduct

any

and

all

Thus, the action was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.

Upon careful consideration

of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability,

disability

insurance

security income on May 14, 2010.

benefits,

and

(Tr. 264).

supplemental

Plaintiff alleged

that she has been disabled since that date due to “headaches,”
“nerves,” “sleeping disorder,” and “nerve damage” to her hand.
(Id. at 277).
stated

that

Plaintiff did not allege a mental impairment and
she

has

never

sought

treatment

for

any

condition, emotional problems, or learning problems. 1

mental
(Id. at

280).
Plaintiff’s
request,

she

was

applications
granted

were

an

denied

and

administrative

upon

timely

hearing

before

Administrative Law Judge Charles A. Thigpen (hereinafter “ALJ”)
on June 15, 2011.

(Id. at 45).

Plaintiff attended the hearing

with her counsel and provided testimony related to her claims.
(Id.).

On September 8, 2011, the ALJ issued an unfavorable

decision finding that Plaintiff is not disabled.

(Id. at 95).

On January 15, 2013, the Appeals Council remanded the case to
1

Subsequently, Plaintiff’s attorney arranged for Dr. Donald W.
Blanton, Ph.D., to administer I.Q. testing on April 13, 2011.
(Tr. 458).
As discussed herein, Dr. Blanton reported that
Plaintiff obtained a full scale I.Q. score of 64 on the WAIS-IV,
which placed her “in the mild range of mental retardation.”
(Id. at 460-61).
Dr. Blanton opined that the full scale score
was a valid assessment of Plaintiff’s current level of
intellectual functioning, and that academic achievement testing
further revealed that she is functionally illiterate.
(Id. at
461).

2

the

ALJ

for

limitations,
expert

to

second

consideration

specifically
clarify

impairment.”
a

further

the

including
nature

(Id. at 102).

administrative

of

Plaintiff’s

“evidence

and

from

severity

a

of

mental
medical

claimant’s

On July 2, 2013, the ALJ conducted

hearing.

(Id.

at

31).

Plaintiff

attended the second hearing with her counsel and again provided
testimony related to her claims.
(“VE”)

also

appeared

(Id. at 42).

at

the

(Id.).

hearing

and

A vocational expert
provided

testimony.

After the second hearing, the ALJ obtained a

medical opinion from a reviewing medical expert, Dr. Sydney H.
Garner, Psy.D, related to Plaintiff’s alleged mental impairment.
(Id. at 641).
unfavorable

On November 8, 2013, the ALJ issued a second

decision

(Id. at 25).

finding

Plaintiff

is

not

disabled.

The Appeals Council denied Plaintiff’s request for

review on April 4, 2014.
dated

that

November

8,

(Id. at 1).

2013,

became

the

Thus, the ALJ’s decision
final

decision

of

the

Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on May 14, 2015, (Doc. 19), 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).

3

II.

Issue on Appeal
Whether the ALJ erred in rejecting the
opinion of examining medical source Dr.
Donald W. Blanton, Ph.D., and finding that
Plaintiff did not meet Listing 12.05C?

III. Factual Background
Plaintiff was born on November 3, 1969, and was forty-three
years of age at the time of her second administrative hearing on
July 2, 2013.

(Tr. 31, 34).

Plaintiff testified that she

completed the tenth grade in high school and has had no further
education. 2

(Id. at 34).

Plaintiff’s school records reflect

that she was enrolled in regular classes while in school, and
that she generally received C’s and D’s, with occasional F’s.
(Id. at 277-78, 308-09).

Her school records also reflect that

she was not able to pass the reading, math, or language portions
of the Alabama High School Graduation Examination; thus, she did
not receive her high school diploma.

(Id. at 311).

At the administrative hearing in 2013, Plaintiff testified
that she last worked in 2010 in the dietary department for a
hospital.

(Id.

at

35).

Plaintiff

also

testified

that

she

worked in this position for one and a half years, and that she

2

In her Disability Report dated June 8, 2010, Plaintiff stated
that she completed the twelfth grade in high school on May 19,
1986. (Tr. 277).

4

quit

because

of

problems

with

her

Additionally,

Plaintiff

reported

dishwasher

a

home

at

nursing

manufacturing plant.

hand.

3

(Id. at

working

and

35,

five

working

years

as

459).

packer

a

as

a

in

a

(Id. at 35, 267).

According to Plaintiff, she has a short attention span;
however, she can follow written instructions most of the time,
can

follow

starts,

can

spoken
get

instructions

along

well

“well,”

with

can

authority

handle stress and changes in routine “well.”

finish
figures,

what

she

and

can

Plaintiff also

reported that she has never been fired or laid off from a job
because of problems getting along with other people.

(Id. at

289).
In

her

Function

Report

and

in

her

testimony,

Plaintiff

stated that she lives with four of her children, walks, cooks,
cleans, and does laundry for herself and her children, shops,
and is able to pay her bills, count change, handle a savings
account, and use a checkbook. 4

(Id. at 34, 283-86).

Plaintiff

also reported that she enjoys spending time with others every
day

and

that

she

goes

to

church

weekly.

(Id.

at

287).

3

In her Disability Report dated June 8, 2010, Plaintiff stated
that
she
stopped
working
in
December
2009
because
of
“headaches,” “nerves,” “sleeping disorder,” and nerve damage to
her hand. (Tr. 277).

4

Plaintiff subsequently testified at her hearing on July 2,
2013, that she does not have a checking account and has never
written a check. (Tr. 36).

5

Additionally, Plaintiff reported that she does not need to be
reminded to go places, nor does she need anyone to accompany
her.

(Id.).

According to Plaintiff, she has a driver’s license

and drives, 5 but she had to take the oral examination four times
before passing it.

(Id. at 36, 286).

Plaintiff’s medications include Hydrochlorothiazide (HCTZ)
(for

high

blood

pressure),
6

Prilosec (for her “chest”),
codeine (for pain), and
IV.

Naproxen

(for

muscle

spasms),

iron (for anemia), Tylenol with

Xanax (for “nerves”).

(Id. at 280).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

7

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

5

At her hearing on July 2, 2013, Plaintiff testified that she no
longer drives. (Tr. 39).

6

Plaintiff testified that her acid reflux medicine makes her
drowsy. (Tr. 37).

7

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
6

Cir.

1986).

The

Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

evidence as a reasonable person
support

a

conclusion.”).

In

consists

of

“such

relevant

would accept as adequate to

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

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
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

Social

sequential

7

see

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 8

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since May 14,
2010,

the

alleged

onset

date,

impairment of hypertension.
determined

that

Plaintiff

obesity,

possible

headaches,

gastroesophageal

and

that

(Tr. 12).
has

the

borderline
reflux

8

she

has

the

severe

In addition, the ALJ

non-severe

impairments

intellectual
disease,

and

of

functioning,
wrist

pain.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
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)).

8

(Id. at 12-13).

The ALJ further found that Plaintiff does not

have an impairment or combination of impairments that meets or
medically equals any of the listed impairments contained in 20
C.F.R. Part 404, Subpart P, Appendix 1.
The

ALJ

concluded

that

(Id. at 15).

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a full range
of work at all exertional levels, except that “she is limited to
simple, unskilled, low stress work and would not be required to
maintain

concentration,

persistence,

periods of time.”

(Id. at 15).

while

medically

Plaintiff’s

reasonably

be

expected

to

and

pace

for

extended

The ALJ also determined that

determinable

produce

the

impairments

alleged

could

symptoms,

her

statements concerning the intensity, persistence and limiting
effects of the alleged symptoms were not entirely credible for
the reasons explained in the decision.
Given

Plaintiff’s

RFC,

the

ALJ

(Id. at 21).
found

that

Plaintiff

is

capable of performing her past work as a kitchen helper (medium
and unskilled) and packager (medium and unskilled).
23).

(Id. at

In addition, utilizing the testimony of a VE, the ALJ

concluded

that

considering

Plaintiff’s

residual

functional

capacity for a full range of work at all exertional levels, as
well as her age, education and work experience, there are also
other jobs existing in the national economy that Plaintiff is
able

to

perform,

such

as

“janitor,”

9

“machine

feeder,”

and

“automobile detailer,” all of which are classified as medium and
unskilled.

(Id. at 24).

is not disabled.

Thus, the ALJ concluded that Plaintiff

(Id.).

In determining whether Plaintiff’s mental impairment was
severe, the ALJ made the following relevant findings:
The claimant’s medically determinable mental
impairment
of
possible
borderline
intellectual functioning does not cause more
than minimal limitation in the claimant’s
ability
to
perform
basic
mental
work
activities and is therefore nonsevere.
In making this finding, the undersigned has
considered the four broad functional areas
set out in the disability regulations for
evaluating mental disorders and in section
12.00C of the Listing of Impairments (20
CFR, Part 404, Subpart P, Appendix 1).
These four broad functional areas are known
as the “paragraph B” criteria.
The first functional area is activities of
daily living.
In this area, the claimant
has mild limitation. The claimant completed
a function report on June 21, 2010, in which
she indicated that the primary problem
limiting her activities of work and daily
living was pain and cramping in her hand.
She reported that aside from hand cramps,
she was able to care for her personal needs
and
perform
household
chores,
such
as
cooking, cleaning, and laundry. She further
reported that she drove a car, shopped for
groceries and other household items, watched
television, and helped her children (Exhibit
4E).
In evaluation with Dr. Blanton, she
reported
cleaning,
cooking,
driving,
shopping, and handling money (Exhibit 11F).
The
next
functional
area
is
social
functioning. In this area, the claimant has
mild limitation.
In her function report,

10

the claimant stated that she spent time
talking with other people every day and went
to church every Sunday.
She stated that
pain and cramps in her right hand limited
her participation in social activities, but
she indicated that she had no problems
getting
along
with
family,
friends,
neighbors, or authority figures (Exhibit
4E).
In evaluation with Dr. Blanton, she
reported having a few friends including a
boyfriend and attending church on a regular
basis. (Exhibit 11F).
The third functional area is concentration,
persistence or pace.
In this area, the
claimant has mild limitation.
The claimant
indicated in her function report that she
was able to pay bills, count change, handle
a savings account, and use a checkbook or
money orders.
She stated that she finished
things she started and followed spoken
instructions well, but she indicated that
hand problems interfered with her ability to
follow written instructions. She reported
that she had no difficulty handling stress
or changes in her routine (Exhibit 4E). In
evaluation with Dr. Blanton, she reported
cooking, driving, shopping, handling money,
attending church, and enjoying the news and
talk shows on television (Exhibit 11F).
The fourth functional area is episodes of
decompensation. In this area, the claimant
has
experienced
no
episodes
of
decompensation which have been of extended
duration.
There is no
indication or
evidence of any episodes of decompensation.
Because
the
claimant’s
medically
determinable mental impairment causes no
more than “mild” limitation in any of the
first
three
functional
areas
and
“no”
episodes of decompensation which have been
of extended duration in the fourth area, it
is nonsevere (20 CFR 404.1520a(d)(1) and
416.920a(d)(1)).

11

(Tr. 14-15).
In

discussing

the

evidence

relating

to

Plaintiff's

intellectual functioning,9 the ALJ found as follows:
School records were provided through the
tenth grade with no indication of special
education classes (Exhibit 8E). . . .
Ellen N. Eno, Ph.D., completed a Psychiatric
Review Technique Form on June 30, 2010,
following review of the claimant’s records
of evidence.
Dr. Eno assessed the claimant
with
no
medically
determinable
mental
impairments (Exhibit 2F). . . .
Donald W. Blanton, Ph.D., was retained by
the
claimant’s
attorney
to
perform
consultative
psychological
evaluation
on
April 13, 2011. The claimant alleged carpal
tunnel syndrome, migraine headaches, heart
problems, and nervous trouble. She reported
daily activities including cleaning up and
cooking.
She reported that she has a
driver’s license and drives short distances,
shops, and handles money.
She reported
having a few friends including a boyfriend
who she sees three times a week.
She
reported attending church on a regular
basis.
She reported that she
enjoys
watching the news and talk shows.
The
Wechsler Adult Intelligence Scale-IV was
administered and yielded a full scale score
of 64, placing her in the mild range of
mental retardation.
The Beck Depression
Inventory II was administered and yielded a
score of 24, placing her in the moderately
depressed range.
Dr. Blanton diagnosed
anxiety/depression likely due to chronic
illness
and
chronic
pain;
mild
mental
9

The ALJ did not specifically discuss Plaintiff’s mental
impairment with respect to Listing 12.05C.
Rather, he simply
determined that Plaintiff’s mental impairment was non-severe and
that none of her impairments met any Listing. (Tr. 14-15).

12

retardation; and a global assessment of
functioning of 50. He assessed the claimant
with
marked
limitations
in
maintaining
attention, concentration, and pace for a
period of at least two hours (Exhibit 11F).
. . .
Sydney
Garner,
Psy.D.,
completed
an
Interrogatory on August 5, 2013, following
review
of
the
claimant’s
records
of
evidence.
Dr. Garner wrote, “There is
actually no diagnosis from a mental health
standpoint.
No emotional disturbance or
treatment for such.
Adaptive functioning
is higher than MR and claimant likely
functions in BIF range- 4E, llF, 2F.
She
reported that the claimant’s impairments do
not meet or equal an impairment in the
listing of impairments, and she elaborated
as
follows,
“No
evidence
longitudinal
history of MR & no evidence of any adaptive
deficits consistent with MR based on work
history and functional report -4E and also
based
on
adaptive
capabilities
as
established by Dr. Blanton- llF.
No mental
health treatment or diagnoses from a mental
health professional for mental illness.
A
prescription for Xanax is not indicative of
a mental.”
(sic)
Dr. Garner was asked to
give a brief summary of the claimant’s
allegations and complaints. She wrote, “Her
complaints all appear to be related to pain.
If there is underlying mood disorder due to
chronic pain, there is no treatment and this
is deemed mild & non-disabling.”
She was
asked if medical evidence supports her
allegations, to which she wrote, “Medical
evidence documents complaints of pain but
also is void for treatment of emotional
disturbance.
Evidence documents adequate
adaptive abilities such that MR is not a
possibly.” (sic) 4E, 11F.
She wrote that
her
conclusion
was
based
on,
“Medical
record does not support MR.”
She reported
that medical impairments established in the
record
do
result
in
limitations
of
functioning in a work setting and expounded

13

as follows, “Academic history and work
history indicate claimant is best suited for
simple, unskilled work. She could maintain
focus in this type of work environment and
has no severe mental impairment that would
result in any more than moderate limits in
ability
to
maintain
concentration,
persistence or pace in a work setting.
(Exhibit 20F)
After careful consideration of the evidence,
the undersigned finds that the claimant’s
medically
determinable
impairments
could
reasonably be expected to cause some of the
alleged symptoms; however, the claimant’s
statements
concerning
the
intensity,
persistence and limiting effects of these
symptoms are not entirely credible for the
reasons explained in this decision. . . .
As for the opinion evidence, Dr. Blanton’s
assessment is rejected and given no weight.
Dr. Blanton’s assessment procured by his
attorney finds retardation and depression in
a claimant whose records do not indicate or
evidence these problems.
Specifically, the
claimant has raised four children, worked in
unskilled jobs where she earned substantial
gainful activity seven years and worked four
other years under the substantial gainful
activity level.
Her records from her
treating physician [Dr. Clower] repeatedly
report the claimant to be fully oriented,
with
appropriate
mood
and
affect,
appropriate judgment, normal insight, and
appropriate
recent
and
remote
memory
(Exhibits
7F
and
10F).
She
also
specifically
denies
depression
to
her
treating physician repeatedly (Exhibits 10F
and
18F).
Additionally,
the
claimant
related in her Function Report that she
cooks, cleans, shops, and is able to pay
bills,
count
change,
handle
a
savings
account, and use a checkbook/money orders
(Exhibit 4E).
Further, the claimant’s
education records and her Disability Report
do not reveal that she attended special

14

education classes (Exhibits 3E and 8E).
Dr.
Garner’s
assessment
is
accorded
substantial weight. Dr. Garner’s assessment
is consistent with the records of evidence
and supports the rejection of Dr. Blanton’s
procured assessment. She acknowledged that
the
claimant
might
function
in
the
borderline intellectual functioning level,
which has been considered in this decision.
However, her last line that the claimant
does not have a severe mental impairment
that would result in any more than a
moderate
limitation
in
concentration,
persistence, or pace is taken exception to.
There is no evidence to suggest the claimant
would have a moderate limitation in this
area as discussed above.
Dr. Eno’s assessment is accorded significant
weight. Her assessment is consistent with
the records and supports this decision.
In
sum,
the
above
residual
functional
capacity assessment is supported by the
records
of
evidence
and
the
many
inconsistencies in the claimant’s records
and testimony at both hearings.
The
claimant has undergone numerous tests, which
have
severed
(sic)
to
demonstrate
no
disabling impairments.
All records have
been used in the findings of the claimant’s
mental and physical abilities.
(Id. at 15-23).

The Court now considers the foregoing in light

of the record in this case and the issue on appeal.
the record in this case and the issue on appeal.
1.

Issue
Whether the ALJ erred in rejecting the
opinion of examining medical source Dr.
Donald W. Blanton, Ph.D., and finding
that Plaintiff did not meet Listing
12.05C?

15

In

this

failing

to

case,
find

Plaintiff
that

claims

her

that

mental

requirements of Listing 12.05C.

the

ALJ

impairment

erred
meets

in
the

Specifically, Plaintiff argues

that she has satisfied the criteria of Listing 12.05C because
she has a valid Full Scale I.Q. score of 64 and a physical
impairment that imposes additional and significant work-related
limitation of function, i.e., hypertension.

(Doc. 14 at 5-8).

Plaintiff also argues that the ALJ erred in failing to apply the
rebuttable presumption required by Hodges v. Barnhart, 276 F. 3d
1265, 1268-69 (llth Cir. 2001).

(Id.).

Last, Plaintiff argues

that the ALJ erred in discrediting the opinions of consultative
examiner Dr. Donald Blanton, Ph.D., that Plaintiff has marked
limitations

in

five

functional

areas

and

that

she

exhibits

adaptive deficits in three functional areas.

(Id. at 2).

The

Commissioner

Plaintiff’s

work

counters

that

the

evidence

of

history and activities of daily living rebuts any presumption of
deficits

in

substantial

adaptive
evidence

functioning
supports

under

the

12.05C;

ALJ’s

that

findings

the
that

Plaintiff’s mental impairment is non-severe and does not meet
Listing 12.05C; and that the ALJ had good cause to discredit the
opinions of Dr. Blanton because they are inconsistent with his
own findings, as well as the remaining record evidence in this
case.

(Doc. 15 at 4-14).

Having carefully reviewed the record

16

in

this

case,

the

Court

finds

that

the

ALJ’s

decision

is

supported by substantial evidence.
As stated above, the Social Security regulations set forth
a five-step sequential evaluation process to determine whether a
claimant

is

disabled.

At

step

three,

the

claimant

has

the

burden of proving that an impairment meets or equals a listed
impairment.

See Harris v. Commissioner of Soc. Sec., 330 Fed.

Appx. 813, 815 (11th Cir. 2009) (unpublished) 10 (citing Barron v.
Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)).
disability

under

section

12.05C,

a

claimant

To establish
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 of function.”
20

C.F.R.

addition,

Part
the

404,

Subpart

claimant

must

P,

Appendix

also

1

satisfy

§
the

12.05(C).

In

‘diagnostic

description’ of mental retardation in Listing 12.05 (the listing
category for mental retardation/intellectual disability), 11 which

10

“Unpublished opinions are not considered binding precedent,
but they may be cited as persuasive authority.” 11TH CIR. R. 362.

11

On August 1, 2013, the Social Security Administration amended
Listing 12.05 by replacing the words “mental retardation” with
“intellectual disability.”
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.
Id.
(citations and internal
17

provides

that

mental

subaverage

general

adaptive

functioning

developmental

retardation

intellectual

period;

“refers

functioning

initially
i.e.,

to
with

manifested

the

evidence

significantly
deficits
during

demonstrates

supports onset of the impairment before age 22.”

in
the
or

20 C.F.R. Part

404, Subpart P, Appendix 1, §§ 12.05.
The law in this Circuit further provides that a valid IQ
score of 60-70 after age 22 creates a rebuttable presumption
that the claimant manifested deficits in adaptive functioning
prior to the age of twenty-two.

See Hodges v. Barnhart, 276 F.

3d 1265, 1268-69 (llth Cir. 2001).

“[A] claimant meets the

criteria for presumptive disability under section 12.05(C) 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 of deficits in adaptive functioning can be
rebutted,

however,

when

the

I.Q.

score

is

inconsistent

with

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.

18

record evidence of a 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

rebut the presumption.

to

plaintiff’s

daily

life)

to

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).
Based on the evidence before the Court, the undersigned
finds that while the ALJ did not reference or explicitly state
that Plaintiff did not meet Listing 12.05C, the ALJ expressly
found that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals a Listing.
15).

(Tr.

Moreover, the ALJ discussed at length the reasons for

rejecting

Dr.

Blanton’s

diagnosis

of

mental

retardation

and

depression, and he implicitly found that Plaintiff did not meet
Listing 12.05C. The ALJ’s decision is supported by substantial
evidence.
First, the ALJ had good cause for rejecting Dr. Blanton’s
diagnosis of mental retardation and depression, and his opinions
that Plaintiff has marked limitations in maintaining attention,
concentration, and pace for a period of at least two hours and
that

she

has

manifesting

demonstrated

prior

to

age

deficits
22.

In

in

adaptive

functioning

the

Eleventh

Circuit,

a

treating physician’s opinion must be given substantial weight

19

unless there is good cause for rejecting the opinion.

Crawford

v. Commissioner of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.
2004); Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
The same is not true of a consultative physician.

As a general

rule, the opinion of a one-time examiner is not entitled to
great weight and may be discredited by other evidence in the
record.
Soc.

Crawford, 363 F.3d at 1160-61; Stone v. Commissioner of

Sec.,

544

particular,

the

F.

Appx.

839,

Commissioner’s

842

(11th

regulations

Cir.

2013).

require

that

In
the

opinions of examining physicians be given more weight than nonexamining

physicians,

the

opinions

of

treating

physicians

be

given more weight than non-treating physicians, and the opinions
of specialists (on issues within their areas of expertise) be
given

more

weight

than

404.1527(c)(1)-(2),

(5)

foregoing

non-specialists.
and

notwithstanding,

See

20

416.927(c)(1)-(2),

the

ALJ

is

“free

to

C.F.R.

§§

(5).

The

reject

the

opinion of any physician [treating, examining, or non-examining]
when the evidence supports a contrary conclusion.” Sryock v.
Heckler,

764

F.2d

834,

835

(11th

Cir.

1985)

(per

curiam)

(citation omitted); Phillips v. Barnhart, 357 F.3d 1232, 1240
(11th Cir. 2004)( good cause exists to discredit the testimony
of any medical source when it is contrary to or unsupported by
the evidence of record); Adamo v. Commissioner of Soc. Sec., 365
Fed. Appx. 209, 212 (11th Cir. 2010)(The ALJ may reject any

20

medical opinion if the evidence supports a contrary finding.);
Hogan

v.

Astrue,

2012

U.S.

Dist.

LEXIS

108512,

*8,

2012

WL

3155570, *3 (M.D. Ala. Aug. 3, 2012)(“Good cause may also exist
where a doctor’s opinions are merely conclusory, inconsistent
with the doctor’s medical records, or unsupported by objective
medical evidence.”).
In this case, Dr. Blanton’s diagnosis of anxiety/depression
and

mild

mental

retardation

was

inconsistent

with

the

findings in his report and with the record evidence. 12

other
While

Plaintiff had a full scale IQ score of 64, her school records
reflect that she was not in special education classes, that she
attended school through the tenth grade, and that her grades
were average such that she was not required to repeat any grade
level.
driver’s

Also, while Plaintiff testified that she had to take the
license

test

orally

four

times

before

successfully

completing it, Plaintiff reported that she can read, write and
handle her finances.

Moreover, during her examination with Dr.

Blanton, Plaintiff described her daily activities as rising at
12

As
found
by
the
ALJ,
Dr.
Blanton’s
diagnosis
of
anxiety/depression is at odds with the records from Plaintiff’s
treating physician.
The medical records from Plaintiff’s long
time treating physician, Dr. Daniel Clower, M.D., repeatedly
reflect that Plaintiff was fully oriented, had appropriate mood,
affect, and judgment, and that she expressly denied any
depression.
(Tr. 22, 440-42, 615-17, 619-20, 623, 625, 627,
629).

21

5:30

a.m.

and

caring

for

cleaning, and shopping.

her

children,

including

cooking,

Plaintiff also indicated that she takes

care of her own personal needs, drives short distances, attends
church on a regular basis, and socializes with a few friends,
including a boyfriend.

Additionally, Plaintiff described a work

history that included working in a hospital’s dietary department
for a year and a half and working at a nursing home for five
years.

Plaintiff reported that she has never been discharged

from a job and that she ceased working due to problems with her
hands.
The record further reflects that the ALJ gave substantial
weight

to

the

assessment

of

Dr.

Sydney

Garner,

Psy.D,

who

reviewed Plaintiff’s records, including Dr. Blanton’s report.
Dr. Garner found that, while Plaintiff might function in the
borderline intellectual range, her impairments do not meet or
equal a listing.

According to Dr. Garner, there was no evidence

of longitudinal history of mental retardation and no evidence of
any adaptive deficits consistent with mental retardation based
on

Plaintiff’s

work

history

and

report

of

daily

activities.

Given Dr. Garner’s assessment, as well as the other evidence of
record,

the

ALJ

had

good

cause

for

rejecting

Dr.

Blanton’s

opinion that Plaintiff has deficits in adaptive functioning.
The undersigned observes that, in addressing the “adaptive
functioning” aspect of Listing 12.05C, the Eleventh Circuit has

22

sustained the rejection of claims under this Listing where the
claimant’s IQ score was significantly inconsistent with his/her
adaptive functioning.
Soc.

Sec.

Admin.,

For instance, in Perkins v. Commissioner,

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
history.

claims

regarding

his

education

and

employment

Also, in Hickel, 539 Fed. Appx. at 984, the Eleventh

Circuit held that the ALJ did not err where he acknowledged that
the claimant had a valid IQ score between 60 and 70, applied the
presumption

established

by

Hodges,

and

found

that

the

presumption was rebutted by other evidence that showed that the
claimant did not have “deficits in adaptive functioning.”
reaching

that

decision,

the

court

noted

that,

although

In
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.
984-985.

Id. at

See also, Popp, 779 F.2d at 1499 (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

23

properly

found

limitations
that,

that

in

the

adaptive

although

the

plaintiff
functions

plaintiff

had

did

not

have

where

the

record

reflected

special

education

been

in

significant

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
record

found

that

evidence

her

regarding

IQ

score

her

was

daily

inconsistent

activities);

with

Johnson

Colvin, 2014 U.S. Dist. LEXIS 13497, 2014 WL 413492, *4
Ala.

Feb.

3,

2014)(although

the

ALJ

never

the

stated

v.

(S.D.

that

the

claimant failed to meet Listing 12.05C, the ALJ’s finding that
the

claimant

had

high

adaptive

skills,

in

that

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 (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

24

not

in

security

special

education

forms,

and

had

classes,
earnings

completed
from

1983

his
–

own

1990

social
between

$13,696 and $18,408 per year).
In this case, the ALJ had good cause for rejecting Dr.
Blanton’s opinions, and in doing so, he implicitly found that
Plaintiff’s

IQ

score

was

significantly

inconsistent

with

her

adaptive functioning; thus, she did not meet Listing 12.05C.
The Court finds that there is substantial evidence supporting
that finding.

See O’Neal v. Commissioner, 2015 U.S. App. LEXIS

9640, *8, 2015 WL 3605682, *3 (llth Cir. 2015) (evidence that
claimant worked as a dishwasher for many years without receiving
any special accommodation or training, helped with light yard
work, looked after his two children, independently performed all
activities of personal care and daily living, attended church
every Sunday, and had a license and drove locally three times a
week supported the ALJ’s implicit conclusion that the claimant
did not have sufficient adaptive functioning to meeting Listing
12.05, notwithstanding his low IQ score.).
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.

25

DONE this 22nd day of June, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

26