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
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