Garrett v. Colvin

Filing 26

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
NORTHERN DIVISION
JAMES GARRETT,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 15-00082-B

ORDER
Plaintiff
judicial

review

James
of

Garrett
a

final

(hereinafter
decision

of

“Plaintiff”)
the

seeks

Commissioner

of

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.
consented

to

have

the

proceedings in this case.

On October 9, 2015, the parties

undersigned
(Doc. 23).

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 filed his applications for benefits on March 1,

2011.

(Tr.

181-87).

Plaintiff

alleged

that

he

has

been

disabled since October 1, 2011, 1 due to “right hand,” “ulcers,”
“chest

pain,”

condition.”

“right

“bilateral

leg,”

and

“back

(Id. at 221, 227).

Plaintiff’s
request,

shoulder,”

he

applications

was

granted

were

an

denied

and

administrative

upon

timely

hearing

before

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
impairments.

(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.
at

47).

On

July

23,

2013,

the

ALJ

issued

decision finding that Plaintiff is not disabled.

1

an

(Id.

unfavorable
(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
this date.

2

The Appeals Council denied Plaintiff’s request for review on
December 24, 2014
dated

July

23,

(Id. at 1-2).
2013,

became

Therefore, the ALJ’s decision
the

final

decision

of

the

Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on October 9, 2015 (Doc. 22), 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).
II.

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.
testified

that

he

can

write

(Id. at 76).

his

name,

but

Plaintiff also
he

cannot

read.

(Id.).
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.

3

(Id. at 66,

228, 236).

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
ten

on

a

ten-point

Plaintiff’s

pain

medications

scale.

include

Amitriptyline, and Prednisone.

(Id.

Advil,

at

66-67,

Tramadol,

69,

78).

Hydrocodone,

(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
own money.

(Id. at 72-73, 244).

He has never had a checking

account; but he can count change and pays his bills with cash or
money order.

(Id. at 77-78, 250).

He has no problems working

with or getting along with other people or his boss.
72).

(Id. at

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.
Plaintiff

(Id. at 83-84).

He can

(Id. at 252).

testified

at

the

hearing

and

stated

in

his

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

4

house,

cleaning

television.

outside

around

the

(Id. at 82, 244).

house,

and

watching

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.
be

reminded

to

medication.

take

(Id. at 248-50).

care

of

(Id. at 249).

once or twice a week.

his

personal

He does not need to
needs

or

(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.

IV.

take

He visits with friends and family

anyone to accompany him when he goes out.

84).

to

He also uses public transportation.

(Id. at

(Id. at 250).

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).

2

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
2

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).
5

of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
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

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

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

404.1505(a),

U.S.C.

§§

416.905(a).

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

6

see

Social

also

20

Security

C.F.R.

§§

regulations

provide

a

five-step

sequential

evaluation

process

determining if a claimant has proven his disability. 3

for

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 February
27, 2011, the alleged onset date, and that he has the severe
impairments of mild lumbar degenerative disc disease, bilateral
shoulder pain,
the chest.

right hand gout, and status post stab wounds to

(Tr. 29).

The ALJ further found that Plaintiff does

3

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)).

7

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

Plaintiff

(Id. at 31).
retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light

work,

with

the

restrictions

that

Plaintiff

“can

sit

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

climb

ramps,

stairs,

ladders

and

scaffolds;

occasionally balance, kneel and crawl, but never stoop or crouch
due to low back pain; and he is unable to read or write.
at

31).

The

ALJ

also

determined

that

while

(Id.

Plaintiff’s

medically determinable impairments could reasonably be expected
to produce the alleged symptoms, his statements concerning the
intensity,
symptoms

persistence
are

not

and

limiting

credible

to

the

inconsistent with the RFC assessment.
Utilizing

the

testimony

of

a

effects
extent

of

the

that

alleged

they

are

(Id. at 32).
VE,

the

ALJ

found

that

considering Plaintiff’s residual functional capacity for a range
of light work, with the stated restrictions, as well as his age,

8

education,

and

work

experience,

performing his past work as a

Plaintiff

is

not

capable

fish hatchery laborer

of

(heavy,

unskilled) but that he can perform other work such as machine
feeder/operator

(sedentary,

(light, unskilled).

unskilled),

(Id. at 36-37).

that Plaintiff is not disabled.
The

Court

now

considers

and

machine

operator

Thus, the ALJ concluded

(Id.).
the

foregoing

in

light

of

the

record in this case and the issues on appeal.
1.

Issue
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).
not

err

criteria

in
for

4

The Commissioner counters that the ALJ did

determining
Listing

that

12.05

Plaintiff
because

the

does

not

satisfy

substantial

the

evidence

(such as Plaintiff’s twenty-four year working history, living

4

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
limitations.
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.

9

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.
at 3-8).

(Doc. 19

Having carefully reviewed the record in this case, the

Court agrees that Plaintiff’s claim is without merit.
In order

for a claimant to meet

Listing 12.05B (mental

retardation), he must present evidence of “[a] valid verbal,
performance,

or

full

scale

IQ

of

59

or

less.”

Jackson

v.

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.”

5

5

20 C.F.R.

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
10

Part 404, Subpart P, Appendix 1 § 12.05(C).
However,
12.05C,

he

before

a

claimant

must

can

additionally

meet

satisfy

Listing
the

12.05B

or

“diagnostic

description” of mental retardation in Listing 12.05 (the listing
category for mental retardation/intellectual disability), 6 which
provides

that

mental

subaverage

general

adaptive

retardation

functioning

developmental

intellectual

period;

functioning

initially
i.e.,

“refers

the

to

significantly

with

deficits

manifested
evidence

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.
In this Circuit, it is presumed that a person’s IQ remains
fairly constant throughout his or her life, and a valid IQ test
score

meeting

the

Listing

significant work-related
dispute in this action.

criteria

limitation

6

of

creates

a

function,

rebuttable

is

not

in

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
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.

11

presumption
twenty-two.

that

the

condition

manifested

itself

before

age

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.

Whetstone v.

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

7

Id. (citing

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
history.
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.
12

Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Popp v.
Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)).

Accordingly,

the ALJ is tasked with determining whether there is sufficient
evidence

(relating

Hodges presumption.

to

plaintiff’s

daily

life)

to

rebut

the

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
year).

13

91467, *7, 2014 WL 3058550, *3 (S.D. Ala. July 7, 2014).
In
process,

addition,
the

ALJ

as
is

part

of

tasked

the

with

disability

weighing

the

determination
opinions

and

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.

See

Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th
Cir. 2011).

The failure to do so is reversible error.

See

Williams v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL
413541, *1 (M.D. Fla. 2009).
When
ALJ

weighing

the

opinion

of

a

treating

physician,

the

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
hand,

is

physician.

not

entitled

to

the

same

deference

as

a

treating

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

14

psychologists who are also experts in Social Security disability
evaluation.’”
(11th

Milner v. Barnhart,

Cir.

2008)

404.1527(f)(2)(i)).
examining

(unpublished)
“The

sources

when

examining sources.”

275 Fed. Appx. 947, 948

ALJ

they

may
do

(citing
rely

not

on

20

C.F.R.

opinions

conflict

with

of

§
non-

those

of

Id. (citing Edwards v. Sullivan, 937 F.2d

580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

good

medical

cause

source

exists

when

it

to

is

discredit

contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004).

“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.”

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.”
764

F.2d

834,

835

(11th

Cir.

1985)

(per

Sryock v. Heckler,
curiam)

(citation

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

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

15

twenty-four year work history and daily life do not reflect the
deficits
12.05.

in

adaptive

(Tr. 30).

examining

functioning

sufficient

to

meet

Listing

In doing so, the ALJ rejected the opinions of

psychologist,

Dr.

John

Goff,

Ph.D.,

as

inconsistent with the substantial evidence in the case.8

being
(Id. at

30-31, 430-37).
The

record

shows

that

Dr.

Goff

examined

Plaintiff

on

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.

(Id.).

Dr.

Goff also noted that Plaintiff tested on a first grade level in
reading and math.

(Id.).

Dr. Goff opined that Plaintiff had

difficulty with complex instructions, that he was functionally
illiterate

and

thus

would

not

be

able

to

deal

with

written

instructions, and that he had “numerous adaptive skills deficits
present.”

(Id.).

Dr. Goff completed a Mental Source Statement

(“MSS”) opining that Plaintiff had marked limitations in the
areas

of

carrying

out

and

remembering

simple

instructions;

responding appropriately to supervisors, co-workers, normal work
8

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).

16

pressures, and changes in routine; exercising judgment in simple
and complex work decisions; and in maintaining activities of
daily living.

(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
they

were

inconsistent

with

the

substantial

case, including Dr. Goff’s own findings.

evidence

in

the

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
report

and

remaining
following:

MSS

(id.

substantial
Dr.

Goff

limitations

in

supervisors

(id.

at

evidence
opined

responding
at

430-37)

are

in
that

inconsistent

the

17

case,

Plaintiff

appropriately

436-37),

November 15, 2012,

which

to
is

with

the

including

the

has

“marked”

co-workers
contradicted

and
by

Plaintiff’s testimony that he had no problems working with other
people or getting along with a boss.

(Id. at 72).

Dr. Goff

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
finishes it.

(Id. at 252).

Dr. Goff also opined that Plaintiff

had “marked” limitations in his ability to handle changes in
routine

(id.

at

436),

which

is

contradicted

by

Plaintiff’s

statement to the Agency that he can handle changes in routine
“okay.”

(Id. at 253).

Dr.

Goff

also

opined

that

Plaintiff

had

“marked”

limitations in maintaining activities of daily living (id. at
437),

which

is

completely

inconsistent

with

Plaintiff’s

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

18

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.

(Id. at

251).
In addition to the foregoing, Dr. Goff’s opinions in the
November

15,

inconsistent

2012,
with

report
the

and

MSS

evidence

(id.

related

at

430-37)

to

are

Plaintiff’s

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
findings

of

consultative

physical

examiner,

Dr.

Robert

MacGregor, M.D., that Plaintiff “is able to bathe, dress, use
the

toilet,

eat,

cook,

without difficulty.”9

wash

dishes,

(Id. at 282).

do

laundry,

and

Dr. MacGregor noted, “ [h]e

currently does not have a car because it was repossessed.”
at 283).

drive

(Id.

Dr. MacGregor continued, “[h]e spends most of his day

visiting friends and family, cleaning the house, sitting around
and talking, and bathing.”

(Id.).

Based on the foregoing, the

Court finds that the ALJ had good cause to reject the opinions
9

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).

19

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
classes.

(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,
10

10

and instead

The DSM–5 provides in pertinent part:
Intellectual
disability
(intellectual
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,
abstract
thinking,
judgment,
academic
learning, and learning from experience,
confirmed by both clinical assessment and
individualized,
standardized
intelligence
testing.
B. Deficits in adaptive functioning that
result in failure to meet developmental and
socio-cultural
standards
for
personal
independence
and
social
responsibility.
Without
ongoing
support,
the
adaptive
20

applied the old definition of adaptive functioning set forth in
the DSM-IV.
reasons.

(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
that

Plaintiff

has

always

lived

independently,

that

he

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
modified

by,

2015

U.S.

Dist.

LEXIS

110117,

2015

WL

5008713

(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,
social
participation,
and
independent
living, across multiple environments, such
as home, school, work, and community.
C.
Onset
of
intellectual
and
adaptive
deficits during the developmental period.
DSM–5 (2013); see also Hightower, 2015 U.S. Dist. LEXIS 110820
at *53, 2015 WL 5008668 at *17.

21

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
has

not

based

its

definition

of

intellectual

disability

in

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
Plaintiff’s

work

history,

medical

records,

and

activities

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
feeder/operator

(sedentary,

unskilled),

11

and

machine

operator

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)).

22

(light, unskilled) (id. at 36-37), and, thus, is not disabled.
Accordingly, Plaintiff’s claim must fail.
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 a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 28th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

23