Garrett v. Colvin
Order that the decision of the Commissioner of Social Security denying plaintiff's claim be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/28/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social
CIVIL ACTION NO. 15-00082-B
Social Security denying his 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.
proceedings in this case.
On October 9, 2015, the parties
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
Plaintiff filed his applications for benefits on March 1,
disabled since October 1, 2011, 1 due to “right hand,” “ulcers,”
(Id. at 221, 227).
Administrative Law Judge Jack F. Ostrander (hereinafter “ALJ”)
on December 3, 2012.
(Id. at 61).
Plaintiff attended the
hearing with his counsel and provided testimony related to his
(Id. at 65).
A vocational expert (“VE”) also
appeared at the hearing and provided testimony.
(Id. at 64).
On May 9, 2013, Plaintiff was granted a second administrative
hearing before ALJ Ostrander, which he attended with his counsel
and again provided testimony. (Id. at 43, 53).
In addition, a
second VE appeared at the hearing and provided testimony.
decision finding that Plaintiff is not disabled.
(Id. at 37).
Plaintiff originally alleged onset dates of January 6, 2011,
and February 27, 2011, but amended the onset date to October 1,
2011. (Tr. 221-22). The ALJ referred to Plaintiff’s onset date
as February 27, 2011. (Id. at 29). Plaintiff makes no issue of
The Appeals Council denied Plaintiff’s request for review on
December 24, 2014
(Id. at 1-2).
Therefore, the ALJ’s decision
timely filed the present civil action.
waived oral argument on October 9, 2015 (Doc. 22), and agree
that this case is now ripe for judicial review and is properly
Issue on Appeal
Whether the ALJ erred in finding that
Plaintiff does not meet the criteria for
Listing 12.05B and 12.05C?
III. Factual Background
Plaintiff was born on October 1, 1968, and was forty-four
years of age at the time of his second administrative hearing on
May 9, 2013.
(Tr. 43, 222).
Plaintiff testified that he was
enrolled in special education classes in school and dropped out
of school in the eighth grade.
(Id. at 76).
According to Plaintiff’s testimony and Work History Report,
he last worked in March 2011 as a laborer for a fish hatchery, a
job he held for approximately twenty-four years.
(Id. at 66,
Plaintiff testified that he liked his job and that
he stopped working because of back and hand pain and because his
back “wouldn’t let [him] bend down.”
(Id. at 66-67, 71).
Plaintiff testified that he has a “slipped disc” in his
back, and he has gout in his right hand which affects his grip.
He described the pain in his back and right hand as an eight to
Amitriptyline, and Prednisone.
(Id. at 68, 262).
Plaintiff testified that he owns his own home, that he has
lived alone all of his life, and that he has always handled his
(Id. at 72-73, 244).
He has never had a checking
account; but he can count change and pays his bills with cash or
(Id. at 77-78, 250).
He has no problems working
with or getting along with other people or his boss.
He testified that he does not have any problems with his
memory or concentration, although when he worked, he sometimes
had problems following instructions.
pay attention all day.
(Id. at 83-84).
(Id. at 252).
Function Report that he spends his time around his house each
day, sweeping or mopping, or walking around the yard and playing
with his dogs.
(Id. at 74, 82).
His routine includes getting
up in the morning, getting dressed, fixing breakfast, cleaning
(Id. at 82, 244).
He prepares all of his own
meals, does all of his own housework and laundry, does all of
his own shopping, mows his own lawn, and has no problems with
his personal care needs.
(Id. at 248-50).
(Id. at 249).
once or twice a week.
He does not need to
(Id. at 83, 251).
He does not need
(Id. at 251).
He does not drive or have a driver’s license.
oral driving test once and failed it.
He took the
(Id. at 55, 75, 77).
When he worked for the fish hatchery, he drove a boat.
He visits with friends and family
anyone to accompany him when he goes out.
He also uses public transportation.
(Id. at 250).
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.
1520, 1529 (11th Cir. 1990).
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
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. 3
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since February
27, 2011, the alleged onset date, and that he has the severe
impairments of mild lumbar degenerative disc disease, bilateral
right hand gout, and status post stab wounds to
The ALJ further found that Plaintiff does
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)).
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.
(Id. at 31).
functional capacity (hereinafter “RFC”) to perform a range of
approximately six hours in an eight-hour day; stand and walk
approximately six hours in an eight-hour day; frequently handle,
finger and feel with his right hand and continuously with his
left hand; occasionally push and/or pull with his right hand,
but continuously with his left hand; frequently push and/or pull
with his right lower foot and frequently with the left foot;
occasionally balance, kneel and crawl, but never stoop or crouch
due to low back pain; and he is unable to read or write.
medically determinable impairments could reasonably be expected
to produce the alleged symptoms, his statements concerning the
inconsistent with the RFC assessment.
(Id. at 32).
considering Plaintiff’s residual functional capacity for a range
of light work, with the stated restrictions, as well as his age,
performing his past work as a
fish hatchery laborer
unskilled) but that he can perform other work such as machine
(Id. at 36-37).
that Plaintiff is not disabled.
Thus, the ALJ concluded
record in this case and the issues on appeal.
Whether the ALJ erred in finding that
Plaintiff does not meet the criteria for
Listing 12.05B and 12.05C?
Plaintiff argues that the ALJ erred
in finding that he
lacks the requisite deficits in adaptive functioning to meet the
criteria for Listing 12.05B or 12.05C (mental retardation).
(Doc. 14 at 4-9).
The Commissioner counters that the ALJ did
(such as Plaintiff’s twenty-four year working history, living
The Court notes at the outset that Plaintiff does not take
issue with the ALJ’s findings related to his physical
impairments or with the ALJ’s evaluation of the opinions of his
treating physician, Dr.
Perry Timberlake, M.D., or any other
physician, related to the degree of Plaintiff’s physical
Rather, Plaintiff argues only that the ALJ erred
in failing to find that he met the cognitive criteria for
Listing 12.05B and 12.05C. Therefore, the Court’s discussion of
the medical evidence is limited to this issue.
independently and caring for his own personal needs all of his
life, handling his own finances, and getting along with coworkers and bosses) reflects that Plaintiff lacks the adaptive
functioning deficits required to meet Listing 12.05.
Having carefully reviewed the record in this case, the
Court agrees that Plaintiff’s claim is without merit.
for a claimant to meet
Listing 12.05B (mental
retardation), he must present evidence of “[a] valid verbal,
Astrue, 2011 U.S. Dist. LEXIS 95629, *12, 2011 WL 3757894, *4
(S.D. Ala. Aug. 25, 2011)(quoting 20 C.F.R. Part 404, Subpart P,
Appendix 1, Listing 12.05B (2010)).
Alternatively, in order for
a claimant to meet Listing 12.05C, he 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.”
For purposes of Listing 12.05C, the second prong requirement is
met once there is a finding that the claimant has an additional
severe impairment because the requirement of “significant workrelated limitation of function” “involves something more than
‘minimal’ but less than ‘severe.’” Johnson v. Colvin, 2014 U.S.
Dist. LEXIS 13497, *7, 2014 WL 413492, *3 (S.D. Ala. Feb. 3,
2014) (quoting Edwards by Edwards v. Heckler, 755 F.2d 1513,
1515 (11th Cir. 1985)). In this case, the ALJ found Plaintiff’s
lumbar degenerative disc disease, bilateral shoulder pain,
right hand gout, and status post stab wounds to the chest to be
severe, and the parties do not dispute that finding. (Tr. 29).
Therefore, the second prong of Listing 12.05C, requiring a
physical or other mental impairment imposing an additional and
Part 404, Subpart P, Appendix 1 § 12.05(C).
description” of mental retardation in Listing 12.05 (the listing
category for mental retardation/intellectual disability), 6 which
supports onset of the impairment before age 22.”
20 C.F.R. Part
404, Subpart P, Appendix 1, §§ 12.05.
In this Circuit, it is presumed that a person’s IQ remains
fairly constant throughout his or her life, and a valid IQ test
dispute in this action.
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.
Dragg v. Astrue, 2012 U.S. Dist. LEXIS 71717, *6,
2012 WL 1885126, *3 (N.D. Ala. May 23, 2012) (citing Hodges v.
Barnhart, 276 F.3d 1265, 1268–69 (11th Cir. 2001)); Jackson,
2011 U.S. Dist. LEXIS 95629 at *12-13, 2011 WL 3757894 at *4.
However, the Commissioner may present evidence of the claimant’s
daily life to rebut the presumption of disability.
Barnhart, 263 F. Supp. 2d 1318, 1325 (M.D. Ala. 2003) (citing
Hodges, 276 F.3d at 1269).
The Eleventh Circuit has held that
“a valid I.Q. score is not conclusive of mental retardation if
the score is ‘inconsistent with other evidence in the record on
the claimant’s daily activities and behavior.’” 7
In addressing the “adaptive functioning” aspect of Listing
12.05C, the Eleventh Circuit has sustained the rejection of
claims under this Listing where the claimant’s IQ score was
significantly inconsistent with his/her adaptive functioning,
despite a qualifying IQ score.
For example, in Perkins v.
Commissioner, Soc. Sec. Admin., 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 claims regarding his education and employment
Also, in Hickel v. Commissioner, 539 Fed. Appx. 980,
984 (llth Cir. 2013), 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 v. Barnhart, 276 F. 3d 1265, 1268-69 (llth Cir. 2001),
and found that the presumption was rebutted by other evidence
that showed that the claimant did not have “deficits in adaptive
functioning.” In reaching that decision, the court noted that,
although 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.
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Popp v.
Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)).
the ALJ is tasked with determining whether there is sufficient
See Grant v. Astrue, 255 Fed. Appx. 374,
375 (llth Cir. 2007); Hartman v. Colvin, 2014 U.S. Dist. LEXIS
Id. at 984-985. See also Popp, 779 F.2d at 1499-1500 (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 properly found that, despite a Full Scale IQ
score of 63, the plaintiff did not have significant limitations
in adaptive functioning where the record reflected that,
although the plaintiff had been in special education 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 found that her
Full Scale IQ score of 60 was inconsistent with the record
evidence regarding her daily activities); Johnson, 2014 U.S.
Dist. LEXIS 13497, 2014 WL 413492, at *4 (although the ALJ never
stated that the claimant failed to meet Listing 12.05C, the
ALJ’s finding that, despite a Full Scale IQ score of 62, the
claimant had high adaptive skills, i.e., 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 (M.D. Fla. 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 not in special
education classes, completed his own social security forms, and
had earnings from 1983 – 1990 between $13,696 and $18,408 per
91467, *7, 2014 WL 3058550, *3 (S.D. Ala. July 7, 2014).
findings of treating, examining, and non-examining physicians.
In reaching a decision, the ALJ must specify the weight given to
different medical opinions and the reasons for doing so.
Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th
The failure to do so is reversible error.
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).
An ALJ is also “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
Milner v. Barnhart,
275 Fed. Appx. 947, 948
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.).
In this case, the ALJ found that Plaintiff did not meet
Listing 12.05B or 12.05C because the evidence of Plaintiff’s
twenty-four year work history and daily life do not reflect the
In doing so, the ALJ rejected the opinions of
inconsistent with the substantial evidence in the case.8
November 15, 2012, and conducted IQ testing, which resulted in a
Full Scale IQ score of 58.
(Id. at 434-35).
Dr. Goff opined
that Plaintiff’s Full Scale IQ score was compatible with his
history, background, and presentation and indicated intellectual
functioning in the mild mental retardation range.
Goff also noted that Plaintiff tested on a first grade level in
reading and math.
Dr. Goff opined that Plaintiff had
difficulty with complex instructions, that he was functionally
instructions, and that he had “numerous adaptive skills deficits
Dr. Goff completed a Mental Source Statement
(“MSS”) opining that Plaintiff had marked limitations in the
responding appropriately to supervisors, co-workers, normal work
The ALJ appears to have accepted Plaintiff’s IQ test scores as
valid but found that the substantial evidence showed that
Plaintiff lacked the requisite deficits in adaptive functioning
to meet Listing 1205B or 12.05C. (Tr. 30).
pressures, and changes in routine; exercising judgment in simple
and complex work decisions; and in maintaining activities of
(Id. at 436-37).
Dr. Goff also opined that
Plaintiff had extreme limitations in the areas of understanding
and carrying out complex instructions; responding appropriately
to the public; and maintaining attention, concentration, or pace
for two hours. (Id. at 436).
Dr. Goff opined that Plaintiff
demonstrated deficits in adaptive functioning in the areas of
self-care, self-direction, work, and functional academic skills.
(Id. at 437).
The ALJ rejected Dr. Goff’s opinions based on the fact that
case, including Dr. Goff’s own findings.
For example, Dr. Goff
opined in the MSS that Plaintiff has “marked” limitations in
carrying out and remembering simple instructions.
(Id. at 436).
This opinion is contradicted by Dr. Goff’s own finding on the
same day that Plaintiff “was able to understand, follow and
carry out very simple instructions.”
(Id. at 435).
In addition, Dr. Goff’s opinions in the
November 15, 2012,
Plaintiff’s testimony that he had no problems working with other
people or getting along with a boss.
(Id. at 72).
also opined that Plaintiff has “extreme” limitations in the area
of maintaining attention, concentration, or pace for two hours
(id. at 436), which is inconsistent with Plaintiff’s testimony
and his statements to the Agency that he does not have any
problems with his memory or concentration (id. at 83-84), that
he can pay attention all day, and that when he starts a task, he
(Id. at 252).
Dr. Goff also opined that Plaintiff
had “marked” limitations in his ability to handle changes in
statement to the Agency that he can handle changes in routine
(Id. at 253).
limitations in maintaining activities of daily living (id. at
testimony that he owns his own home, that he has lived alone his
entire adult life, that he handles his own money (id. at 72-73,
244, 250), that he can count change and pay his bills with cash
or money order (id. at 77-78, 250), that he prepares all of his
own meals, does all of his own housework, laundry, and shopping,
mows his own lawn, and has no problems with his personal care
needs (Id. at 74, 82, 244, 248-50), that he visits with friends
and family at least once or twice a week (id. at 83, 251), that
he does not need to be reminded to take care of his personal
needs or to take his medication (id. at 249), and that he does
not need anyone to accompany him when he goes out.
In addition to the foregoing, Dr. Goff’s opinions in the
significant work history, including the fact that he maintained
regular, consistent employment for twenty-four years at a fish
hatchery, where he performed functions including driving a boat.
(Id. at 66, 84).
In addition, Dr. Goff’s findings are inconsistent with the
MacGregor, M.D., that Plaintiff “is able to bathe, dress, use
(Id. at 282).
Dr. MacGregor noted, “ [h]e
currently does not have a car because it was repossessed.”
Dr. MacGregor continued, “[h]e spends most of his day
visiting friends and family, cleaning the house, sitting around
and talking, and bathing.”
Based on the foregoing, the
Court finds that the ALJ had good cause to reject the opinions
While the evidence reflects that Plaintiff does not have a
drivers license and that he failed the driving test after
attempting the oral examination one time, he does have the
ability to drive. (Tr. 75, 282-83).
of evaluating psychologist, Dr. Goff, as being inconsistent with
the substantial evidence in the case.
The Court is also aware, as was the ALJ, of Plaintiff’s
poor academic performance in school and his special education
(Id. at 264-70).
However, as the ALJ found, even
considering this evidence, the substantial evidence in this case
reflects a level of functioning that is higher than Plaintiff’s
Full Scale IQ score of 58 would indicate and does not satisfy
the deficits in adaptive functioning required for Listing 12.05.
Finally, Plaintiff argues that the ALJ erred in failing to
apply the new definition of adaptive functioning set forth in
the most recent edition of the DSM, the DSM-5,
The DSM–5 provides in pertinent part:
developmental disorder) is a disorder with
onset during the developmental period that
includes both intellectual and adaptive
functioning deficits in conceptual, social,
and practical domains. The follow three
criteria must be met:
A. Deficits in intellectual functions, such
as reasoning, problem solving, planning,
learning, and learning from experience,
confirmed by both clinical assessment and
B. Deficits in adaptive functioning that
result in failure to meet developmental and
applied the old definition of adaptive functioning set forth in
(Doc. 14 at 7-9).
This argument fails for two
First, Plaintiff has failed to show that the Social
Security Administration has changed its criteria for evaluating
Listing 12.05 based on the new definition contained in the DSM5.
Second, even if the Court were to apply the new definition
of adaptive functioning in the DSM-5, the evidence in this case
successfully maintained employment for twenty-four years, that
he has always taken care of his own finances, and that he has
always taken care of his own personal needs establishes that he
lacks the required deficits in adaptive functioning under the
DSM-5 definition as well.
See Hightower v. Commissioner of Soc.
Sec. Admin., 2015 U.S. Dist. LEXIS 110820, *53, 2015 WL 5008668,
*17 (D.S.C. June 12, 2015), report and recommendation adopted as
(D.S.C. Aug. 20, 2015) (rejecting a similar argument and noting
that Listing 12.05 has not been updated by the SSA to reflect
deficits limit functioning in one or more
areas of daily life, such as communication,
living, across multiple environments, such
as home, school, work, and community.
deficits during the developmental period.
DSM–5 (2013); see also Hightower, 2015 U.S. Dist. LEXIS 110820
at *53, 2015 WL 5008668 at *17.
the changes present in the DSM-5, which calls into question its
applicability to Listing 12.05); Harley v. Colvin, 2015 U.S.
Dist. LEXIS 174876, *14 n.4, 2015 WL 9699531, *5-7 n.4 (E.D.N.C.
Dec. 2, 2015), report and recommendation adopted
by 2016 WL
126372 (E.D.N.C. Jan. 11, 2016) (noting that, because the SSA
Listing 12.05 solely on the American Psychiatric Association’s
definition in the DSM–IV, but also on the definitions used by
three other leading professional organizations, and that because
the SSA has expressly stated that it does not “seek to endorse
the methodology of one professional organization over another,” 11
“it remains appropriate to reference the diagnostic criteria in
the DSM–IV in applying Listing 12.05C.”).
Having reviewed this case at length, the Court finds that
substantial evidence supports the ALJ’s finding that Plaintiff
does not meet Listing 12.05B or 12.05C because the evidence of
daily living rebuts the presumption of mental retardation and
supports the ALJ’s finding that Plaintiff can perform a range of
light work, with the stated restrictions, such as a machine
See Harley, 2015 U.S. Dist. LEXIS 174876 at *14 n.4, 2015 WL
9699531 at *5
n.4 (quoting the Technical Revisions to Medical
Criteria for Determinations of Disability, 67 Fed. Reg. 20018–
01, 2002 WL 661740 at 20022 (SSA 24 Apr. 2002)).
(light, unskilled) (id. at 36-37), and, thus, is not disabled.
Accordingly, Plaintiff’s claim must fail.
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
supplemental security income be AFFIRMED.
DONE this 28th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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