Kayser v. Commissioner of Social Security
Filing
28
OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file. Signed by Magistrate Judge Carol Mirando on 11/8/2016. (LS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH MICHAEL KAYSER,
Plaintiff,
v.
Case No: 2:15-cv-566-FtM-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Plaintiff Joseph Michael Kayser seeks judicial review of the denial of his claim
for Supplemental Security Income (“SSI”) by the Commissioner of the Social Security
Administration (“Commissioner”). The Court has reviewed the record, the briefs,
and the applicable law.
For the reasons discussed herein, the decision of the
Commissioner is AFFIRMED.
I.
Issues on Appeal 1
Plaintiff raises two issues on appeal: (1) whether substantial evidence supports
the Administrative Law Judge’s (ALJ) finding that Plaintiff does not meet or equal
listing 12.05C; and (2) whether substantial evidence supports the ALJ’s
determination of Plaintiff’s Residual Functional Capacity (“RFC”).
Any issue not raised by Plaintiff on appeal is deemed to be waived. Sanchez v. Comm'r of
Soc. Sec., 507 F. App'x 855, 856 n.1 (11th Cir. 2013) (“’[A] legal claim or argument that has
1
not been briefed before the court is deemed abandoned and its merits will not be addressed.’”)
(citing Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)).
II.
Procedural History and Summary of the ALJ’s Decision
On May 10, 2011, Plaintiff filed an application for SSI alleging a disability
onset date of October 25, 2004. Tr. 136-42. Plaintiff later amended his alleged
onset date to May 10, 2011, his application date. Tr. 30. Plaintiff alleged disability
due to a cracked pelvis, injured disks, and illiteracy. Tr. 62, 67. The applications
initially were denied on August 4, 2011 and upon reconsideration on October 14, 2011.
Tr. 67-105. Plaintiff requested and received a hearing before ALJ Larry J. Butler on
September 30, 2013, during which he was represented by an attorney. Tr. 26-61.
Plaintiff testified at the hearing. Id.
On September 15, 2014, the ALJ issued a decision finding Plaintiff not disabled
from May 10, 2011 through the date of the decision. Tr.12-21. At step one, the ALJ
determined that Plaintiff had not engaged in substantial gainful activity since May
10, 2011. Tr. 14. At step two, the ALJ determined that Plaintiff has the following
severe impairments: history of right pelvic fracture, chronic low back pain,
polysubstance dependence, and borderline intellectual functioning.
Id.
At step
three, the ALJ concluded that Plaintiff “does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 15. The ALJ then
determined that Plaintiff had the RFC to perform the full range of medium work as
defined in 20 CFR 416.967(c). 2 Tr. 16. Further, the ALJ found
The regulations define medium work as work that involves “lifting no more than 50 pounds
at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone
can do medium work, [it is determined] that he or she can also do sedentary and light work.”
20 C.F.R. 416.967(c).
2
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[Plaintiff] is able to occasionally lift/carry 50 pounds, frequently
lift/carry 25 pounds, stand/walk about 6 hours in an 8-hour workday, sit
about 6 hours in an 8-hour workday, and has unlimited ability to push
and pull including operation of hand and/or foot controls. [Plaintiff] is
limited to simple, repetitive, routine tasks or unskilled work.
Id. Next, the ALJ found Plaintiff has no past relevant work. Tr. 20. Considering
Plaintiff’s age, education, work experience, and RFC for the full range of medium
work, the ALJ concluded that a finding of “not disabled” was directed by MedicalVocational Rule 203.25 and Rule 203.18.
I.
Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months.
42 U.S.C. §§ 416(i)(1),
423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability.
See 20 C.F.R. §416.920.
The Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”
Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
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through step four; and, at step five, the burden shifts to the Commissioner. Id.;
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court’s review is
limited to determining whether the ALJ applied the correct legal standards and
whether the findings are supported by substantial evidence. McRoberts v. Bowen,
841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390
(1971)).
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence.
42 U.S.C. § 405(g).
Substantial evidence is “more than a
scintilla, i.e., evidence that must do more than create a suspicion of the existence of
the fact to be established, and such relevant evidence as a reasonable person would
accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a
mere scintilla, but less than a preponderance”) (internal citation omitted).
The Eleventh Circuit recently has restated that “[i]n determining whether
substantial evidence supports a decision, we give great deference to the ALJ’s fact
findings.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015)
(citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir.
1996)). Where the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result
as finder of fact, and even if the reviewer finds that the preponderance of the evidence
is against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The
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district court must view the record as a whole, taking into account evidence favorable
as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings). It is the
function of the Commissioner, and not the courts, to resolve conflicts in the evidence
and to assess the credibility of the witnesses. Lacina v. Commissioner, 2015 WL
1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).
II.
Discussion
a. Whether substantial evidence supports the ALJ’s conclusion that
Plaintiff does not meet or medically equally listing 12.05C
Plaintiff argues that the ALJ erred by failing to provide any substantive
discussion of why Plaintiff’s intellectual disability did not “equal” listing 12.05C.
Doc. 21 at 3-11. Plaintiff contends that the record evidence supports a finding that
his impairment equals listing 12.05C; however, the ALJ’s failure to discuss listing
12.05C was error. Id. This error, according to Plaintiff, deprives the Court of the
articulation necessary to perform a substantial evidence review. Id. at 10. The
Commissioner responds that Eleventh Circuit precedent does not require a
mechanical recitation of the evidence at step three, and even an implied finding is
sufficient. Doc. 23 at 7-8. According to the Commissioner, the ALJ’s statements in
this case comport with the minimal articulation necessary at step three.
Id.
Moreover, the Commissioner further argues, Plaintiff has failed to meet his burden
that his mental impairment meets or equals listing 12.05C. Id. at 8.
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The listings describe impairments that the Commissioner considers severe
enough to prevent a person from doing “any gainful activity, regardless of his or her
age, education, or work experience.”
See 20 C.F.R. §416.925(a).
If an adult’s
impairment “meets or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. . . .” Sullivan v. Zebley, 493 U.S. 521, 532
(1990) (citing Bowen, 482 U.S. at 141). The Eleventh Circuit has described how the
standard is met:
In order to meet a listing, the claimant must (1) have a diagnosed
condition that is included in the listings and (2) provide objective
medical reports documenting that this condition meets the specific
criteria of the applicable listing and the duration requirement. A
diagnosis alone is insufficient.
Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (citing 20
C.F.R. § 416.925(c)-(d)). The burden of establishing that a claimant’s impairments
meet or equal a listing rests with the claimant, who must produce specific medical
findings that satisfy all the criteria of a particular listing. 20 C.F.R. § 404.1520(a)(4).
The introductory material to the mental disorders listings clarifies Listing
12.05, stating:
The structure of the listing for intellectual disability (12.05) is different
from that of the other mental disorders listings. Listing 12.05 contains
an introductory paragraph with the diagnostic description for
intellectual disability. It also contains four sets of criteria (paragraphs
A through D). If your impairment satisfies the diagnostic description
in the introductory paragraph and any one of the four sets of criteria,
[the Commissioner] will find that your impairment meets the listing.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00A. Listing 12.05 provides, in pertinent
part, that a claimant is disabled if he or she meets the following criteria:
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12.05 Intellectual disability: intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and
significant work-related limitation of function;
...
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (emphasis added). Accordingly, in order
to meet listing 12.05, “a claimant must at least[:] 1) have significantly subaverage
general intellectual functioning; 2) have deficits in adaptive [functioning]; and 3) have
manifested deficits in adaptive [functioning] before age 22.” Crayton v. Callahan,
120 F.3d 1217, 1219 (11th Cir. 1997); 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05.
Additionally, a claimant must meet one of the four sets of criteria found in 12.05A, B,
C, or D, in order to show that his or her impairments are severe enough to meet or
equal listing 12.05. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A).
Relevant here, as noted above, paragraph C of listing 12.05 is met when the
claimant shows: 1) “a valid verbal, performance, or full scale IQ of 60 through 70” and
2) “a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” Id. at § 12.05C. Generally, a claimant meets
the criteria for presumptive disability under section 12.05C when the claimant
satisfies two prongs: a valid I.Q. score of 60 to 70 inclusive; and evidence of an
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additional mental or physical impairment that has more than “minimal effect” on the
claimant’s ability to perform basic work activities. Lowery, 979 F.2d at 837. “It is
settled, however, that the presence of a more than slight or minimal limiting
impairment satisfies the second criteria of section 12.05C, even if the impairment is
treatable.” Davis v. Shalala, 985 F.2d 528, 262 n.3 (11th Cir. 1993).
Plaintiff begins his argument by conceding that he does not meet all the
requirements of listing 12.05C, stating “Plaintiff begins by acknowledging that his
intellectual disability does ‘meet’ the requirements of listing 12.05C because his full
IQ score is documented as 73, three points higher than required by the listing.” Doc.
21 at 5. Instead, he argues that “the evidence more than fairly raises the issue of
whether Mr. Kayser’s intellectual disability is equivalent in severity to someone who
meets [l]isting 12.05” but posits that the ALJ significantly erred by failing to provide
any substantive analysis on this issue. Id.
The regulations provide three ways to determine medical equivalence:
(1)(i) If you have an impairment that is described in the Listing .
. . but—
(A) You do not exhibit one or more of the findings specified in the
particular listing, or
(B) You exhibit all of the findings, but one or more of the findings
is not as severe as specified in the particular listing,
(ii) We will find that your impairment is medically equivalent to that
listing if you have other findings related to your impairment that are at
least of equal medical significance to the required criteria.
(2) If you have an impairment(s) that is not described in the Listing of
Impairments in appendix 1 of subpart P of part 404 of this chapter, we
will compare your findings with those for closely analogous listed
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impairments. If the findings related to your impairment(s) are at least
of equal medical significance to those of a listed impairment, we will find
that your impairment(s) is medically equivalent to the analogous listing.
(3) If you have a combination of impairments, no one of which meets a
listing described in the Listing of Impairments in appendix 1 of subpart
P of part 404 of this chapter (see § 416.925(c)(3)), we will compare your
findings with those for closely analogous listed impairments. If the
findings related to your impairments are at least of equal medical
significance to those of a listed impairment, we will find that your
combination of impairments is medically equivalent to that listing.
20 C.F.R. § 416.926(b). If a claimant contends that an impairment equals a listing,
he “must present evidence which describes how the impairment has such an
equivalency.” Wilkinson, 847 F.2d at 662.
“[H]e must present medical findings
equal in severity to all the criteria for the one most similar listed impairment.”
Sullivan, 493 U.S. at 531 (emphasis in original). Moreover, a plaintiff cannot meet
his burden “by showing that the overall functional impact of his unlisted impairment
or combination of impairments is as severe as that of a listed impairment.” Id.
Based on a review of the record and the relevant authority, the Court is not
persuaded by Plaintiff’s argument that the ALJ erred in failing to provide any
substantive discussion of listing 12.05C. Here, the ALJ found that Plaintiff lacks
the degree of symptoms, the documentation, and continuity of medical treatment in
order to establish an impairment of the severity contemplated by the listings. Tr.
15. The ALJ enumerated listing 12.05C as among those he considered and noted,
“the severity of [Plaintiff’s] mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of listings 12.04, 12.05, and
12.09.” Id. The ALJ acknowledged that Plaintiff obtained a full scale IQ score of
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73, placing him in the borderline range of intellectual functioning. Tr. 16. The ALJ
cited the medical report of Dr. Claudia Zsigmond, Psy.D., in which she chose not to
diagnose Plaintiff with an intellectual impairment “due to limited report of
impairments in adaptive functioning.” Tr. 16, 266. The ALJ also then discussed
Plaintiff’s lack of impairments in adaptive functioning, such as his ability to care for
his grandmother and his two small pets, and to attend to his personal care. Tr. 15.
Moreover, the ALJ discussed Plaintiff’s ability to perform household chores and shop
in stores for food. Id.
The foregoing discussion is sufficient articulation necessary at step three. As
the Eleventh Circuit has held, “it is not required that the Secretary mechanically
recite the evidence leading to her determination. There may [even] be an implied
finding that a claimant does not meet a listing.” Hutchison v. Bowen, 787 F.2d 1461,
1463 (11th Cir. 1986) (citing Edwards v. Heckler, 736 F.2d 625, 629 (11th Cir.1984)).
In a case analogous to the instant case, the plaintiff argued that there was a strong
possibility that her condition medically equaled a listing but the ALJ erred by not
explaining his determination that the plaintiff’s condition did not medically equal any
listing. Johnson v. Barnhart, 148 F. App’x 838, 841 (11th Cir. 2005). The court
held,
[t]he ALJ explained the weight he accorded to certain pieces of evidence
and stated that, based on all the record evidence, [the plaintiff’s]
condition did not medically or functionally equal a listed impairment.
This statement is sufficient evidence that the ALJ considered (and
rejected) a determination that [the plaintiff’s] condition met Listing
103.03(B).
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Id. (citing Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002)). Although an
unpublished opinion is not binding on this Court, the Court finds Johnson persuasive
in that it relies on Eleventh Circuit precedent. Id. (citing Wilson, 284 F.3d at 1224
for its holding that an ALJ’s statement that “the medical evidence establishes that
[the plaintiff] had [several injuries] which constitute a ‘severe impairment,’ but that
he did not have an impairment or combination of impairments listed in, or medically
equal to one listed in Appendix 1, Subpart P, Regulations No. 4” was sufficient
evidence that the ALJ considered the combined effects of the plaintiff’s impairments).
Next, the Court finds that substantial evidence supports the ALJ’s decision
that Plaintiff’s impairments did not meet or equal listing 12.05C. Plaintiff’s record
consists of no medical records; as such, he was sent to multiple consultative
examinations, which the ALJ considered.
Tr. 17.
Of note, the record does not
reflect that Plaintiff ever was diagnosed with intellectual disability. See Smith v.
Comm’r of Soc. Sec., 535 F. App’x 894, 897-98 (11th Cir. 2013) (“The fact that none of
the other treatment records diagnosed [the plaintiff] with mental retardation 3
supports the ALJ’s . . . conclusion that [the plaintiff] did not meet or equal the criteria
of Listing 12.05(C).”).
Dr. Eshan M. Kibria, M.S., M.B.A., D.O., evaluated Plaintiff on July 26, 2011.
Tr. 258-59. The mental status examination revealed that Plaintiff’s work related
mental activities, understanding, memory, concentration, social interaction and
The Court notes that currently listing 12.05 uses “Intellectual disability” in place of “Mental
retardation,” amended on August 1, 2013. See 78 Fed. Reg. 46499-01, 46,500. The listing,
however, has not substantively changed. Id.
3
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adaptation were intact. Tr. 258. Plaintiff had a normal fund of general information
and speech pattern. Id.
Dr. Lori Chang, Ph.D., evaluated Plaintiff on November
11, 2013. Tr. 269-81. Plaintiff reported that he struggled with academic problems
since the onset of his schooling and that he never learned to read or write despite
having been placed in special education classes.
Tr. 273.
Plaintiff reported he
dropped out of school in tenth grade due to frustration and inability to retain
information. Tr. 280. Dr. Chang performed the Wechsler Adult Intelligence ScaleFourth Edition test and received a verbal comprehension score of 72 and a full scale
score of 73. Tr. 278. Dr. Chang determined that Plaintiff had no difficulties with
understanding and remembering simple instructions or in carrying out simple
instructions, and had only moderate difficulties with understanding, remembering,
or carrying out complex instructions. Tr. 269-81. Dr. Chang diagnosed Plaintiff
with borderline intellectual function, but not intellectual disability. Tr. 279. The
ALJ accorded this opinion great weight.
Tr. 20.
Moreover, state agency
psychological consultants, Robert F. Schilling, Ph.D. and James Mendelson, Ph.D.
both opined that based on the totality of evidence, Plaintiff was capable of
independent functioning and there was no indication of a mental impairment that
would meet or equal any listing. Tr. 71. The ALJ also accorded these opinions great
weight. Tr. 20.
As noted, Plaintiff must prove deficits in adaptive functioning. Although the
regulations do not define the term, “adaptive functioning” refers to an individual’s
progress in acquiring mental, academic, social and personal skills as compared to
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other unimpaired individuals of his or her same age. Program Operations Manual
System (POMS), DI 24515.056.D.2.; see also O’Neal v. Comm’r of Soc. Sec., 614 F.
App’x 456, 459 (11th Cir. 2015) (“Even though the SSA has not specifically defined
‘deficits in adaptive functioning,’ the Diagnostic and Statistical Manual of Mental
Disorders (“DSM”) states that adaptive functioning ‘refers to how effectively
individuals cope with common life demands and how well they meet the standards
of personal independence expected of someone in their particular age group,
sociological background, and community setting.’ DSM–IV–TR at 42.”).
Here, on July 21, 2011, Dr. Zsigmond completed a general clinical evaluation
with mental status on Plaintiff, during which she determined that Plaintiff would
“not be diagnosed with an intellectual impairment due to limited report of
impairments in adaptive functioning.”
Tr. 266.
Dr. Zsigmond explained that
Plaintiff had lived successfully on his own in the past and was then caring for his
grandmother and managing her household. Tr. 266. In fact, Plaintiff reported that
he cared for his grandmother and two small pets, and had no difficulty with personal
care. Tr. 174. Plaintiff was able to prepare his own meals every day and complete
all his indoor and outdoor household chores. Tr. 175. He was able to shop twice per
week, although he bicycled to the store as he was unable to drive because he lost his
driver’s license as a result of convictions for driving under the influence. Tr. 51-52,
176. He testified that he lived alone and was responsible for paying the mortgage
and utilities on his house. Tr. 43-46, 48.
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In addition to his daily activities, Plaintiff’s work activity suggests a lack of
deficit in adaptive functioning. Plaintiff testified that he had no problems following
directions. Tr. 43-44. Plaintiff testified that he mows his neighbor’s lawn every
Friday. Tr. 49. As of the hearing date, he was working as a day laborer three to
five days per week performing construction jobs. Tr. 333-35. He testified that one
year prior to the hearing, he briefly worked for approximately one month building
houses but quit because he did not like the way his employer was paying him. Tr.
49-50. In the past, he testified that he worked in lawn maintenance and constructed
and dismantled docks. Tr. 33.
Plaintiff’s friend, Maurice Bushway, completed a function report, to which the
ALJ gave great weight. Tr. 212-19. Mr. Bushway had known Plaintiff for twentyfive years. Mr. Bushway’s report suggested that Plaintiff only had physical
limitations in that no mental impairments were noted except for a difficulty with
written instructions. 4 He also stated that Plaintiff can pay attention “forever” but
stated that Plaintiff has difficulty following written instructions because he does not
read. Id.
The Eleventh Circuit has upheld an ALJ’s conclusion that a claimant did not
meet or equal the criteria for 12.05C when the claimant’s deficits in adaptive
functioning were not reflective of an intellectual disability.
See e.g., Harris v.
Comm’r of Soc. Sec., 505 F. App’x 874, 876 (11th Cir. 2013); Hickel v. Comm’r of Soc.
With respect to checking off a list of items that are affected by Plaintiff’s impairments, Mr.
Bushway did not check off any mental impairments such as memory, concentration,
understanding, or following instructions. Tr. 217.
4
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Sec., 539 F. App’x 980, 984 (11th Cir. 2013); O’Neal, 614 F. App’x at 459.
For
example, in Hickel, the ALJ acknowledged that the plaintiff had a valid IQ score
between 60 and 70. 539 F. App’x at 984. The ALJ found, however, that the plaintiff
did not have deficits in adaptive functioning because the plaintiff worked part time,
had friends, attended church regularly, drove, cared for her personal needs, could
prepare simple meals, groom, dress and bathe herself. Id. Accordingly, the ALJ
found that the Plaintiff did not meet the requirements of 12.05C because she lacked
deficits in adaptive functioning.
Id.
The court found that substantial evidence
supported the ALJ’s finding. Id. at 985. In O’Neal, the Court held that because the
plaintiff held a job as a dishwasher for many years without receiving any special
accommodation or training, quit his job only for family reasons - after which he
worked occasionally as a handy man - and was able to help at home with light yard
work, look after his two children, and independently perform all his activities of
personal care and daily living, the plaintiff did not have sufficient adaptive
functioning deficits to meet the requirements of the diagnostic description in listing
12.05. 614 F. App’x at 459.
Accordingly, based on the record evidence and the foregoing authority, the
Court finds that the ALJ committed no reversible error at step three of the sequential
evaluation process and his decision must be affirmed on this issue.
b. Whether the RFC is supported by substantial evidence
Plaintiff argues that the ALJ’s RFC determination is erroneous because it fails
to account for the ALJ’s finding that Plaintiff had moderate difficulties in
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concentration, persistence, and pace.
Doc. 21 at 11-14.
The Commissioner
responds that the ALJ’s finding that Plaintiff was limited to unskilled work
adequately accounted for Plaintiff’s deficits in concentration, persistence, or pace.
Doc. 24 at 14. Having reviewed the record and controlling authority, the Court finds
substantial evidence supports the ALJ’s RFC assessment.
The RFC is the most that a claimant can do despite his limitations. See 20
C.F.R. § 404.1545(a).
At the hearing level, the ALJ has the responsibility of
assessing a claimant’s RFC. See 20 C.F.R. § 404.1546(c). The ALJ is required to
assess a claimant’s RFC based on all of the relevant evidence in the record, including
any medical history, daily activities, lay evidence and medical source statements. 20
C.F.R. § 404.1545(a). The claimant’s age, education, work experience, and whether
he can return to his past relevant work are considered in determining his RFC, Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1520(f)), and
the RFC assessment is based upon all relevant evidence of a claimant’s ability to do
work despite his impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.
2004); Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).
In conducting his step three analysis, the ALJ considered the four broad
functional areas set out in the regulations for evaluating mental disorders and in
section 12.00C of the Listing of Impairments, the so-called “paragraph B” criteria. 5
Tr. 15.
The ALJ found that Plaintiff had moderate difficulties in maintaining
concentration, persistence, or pace. Id. In so doing, the ALJ discussed that in his
5
20 C.F.R., Part 404, Subpart P. Appendix 1.
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initial mental status examination, Plaintiff demonstrated adequate recall of recent
and remote events, suggesting no severe short-term or long-term memory
impairment.
Id. The ALJ also discussed other findings from the initial mental
status examination. Plaintiff was able to recall the three word list immediately and
then five minutes later he recalled one of three words.
Tr. 16.
Plaintiff was
prompted with semantic cueing and was unable to recall one of the remaining words.
Id. Plaintiff was unable to spell the word WORLD forwards or backwards, indicating
poor spelling abilities. Id. Plaintiff was able to complete simple math calculations.
Id. His speech and thought processes were goal-directed, logical and coherent, and
there was no evidence of a formal thought disorder. Id. The ALJ discussed that
during the second mental status examination, Plaintiff’s immediate recall was three
out of three and one out of three recall after a short delay. Id. Plaintiff was unable
to complete serial sevens without minor computation errors, though he correctly
computed serial threes.
Id.
Plaintiff did not have any noted difficulties with
repetition or following single and multi-step commands. Id. Again, there was no
indication of formal thought disorder or psychotic symptoms. Id. As noted, the ALJ
limited Plaintiff’s RFC to performing “simple, repetitive, routine tasks or unskilled
work.” Tr. 16.
Both parties rely on Winschel, 631 F. 3d 1176, to support their arguments.
Plaintiff argues that a mere restriction to “simple, repetitive, routine tasks or
unskilled work” is deficient when the record, such as here, reflects restrictions of
concentration, persistence, or pace. Doc. 21 at 12 (citing Winschel, 631 F. 3d at
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1180).
The Commissioner, on the other hand, argues that the ALJ need not
explicitly reference concentration, persistence, or pace where the ALJ indicates that
medical evidence suggests the claimant can work despite the limitation. Doc. 24 at
14 (citing Winschel, 631 F. 3d at 1181).
In Winschel, the Eleventh Circuit for the first time in a published opinion
decided whether a hypothetical question to a vocational expert must specifically
account for limitations in concentration, persistence, and pace. 631 F.3d at 1180.
The Court held, if the ALJ determines that a claimant has moderate limitation in
maintaining concentration, persistence, and pace, the ALJ’s hypothetical to the VE
must include, or implicitly account for, this limitation. Id. at 1181. Here, in his
RFC determination, the ALJ stated that he “considered [Plaintiff’s] difficulty with
intellectual functioning but finds that he still retains the capacity to perform
unskilled work based on consultative evaluations, intellectual testing, and activities
of daily living.” Tr. 19.
The evidence, as more thoroughly discussed in the previous section, provides
substantial evidence for the ALJ’s RFC determination. Dr. Kibria noted Plaintiff’s
work-related mental activities, understanding, memory, concentration, social
interaction and adaptation were intact. Tr. 258. Dr. Chang noted no difficulties
with repetition or following single and multi-step commands; and, although Plaintiff
was unable to complete serial sevens, he was able to compute serial threes. Tr. 276.
Dr. Chang opined that Plaintiff had no difficulties with understanding and
remembering simple instructions or in carrying out simple instructions, and had
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moderate difficulties with understanding, remembering, carrying out complex
instructions, and making judgments on complex work-related decisions. Tr. 269.
As several courts have found, the Court similarly finds here that the medical evidence
demonstrates that the ALJ’s restriction to simple, repetitive, routine tasks or
unskilled work sufficiently accounts for Plaintiff’s limitations on concentration,
persistence and pace. See, e.g., Winschel, 631 F.3d at 1180-81; Jacobs v. Comm’r of
Soc. Sec., 520 F. App’x 948, 950-51 (11th Cir. 2013); Timmons v. Comm’r of Soc. Sec.,
522 F. App’x 897, 907-08 (11th Cir. 2013).
V.
Conclusion
Upon review of the record, the undersigned concludes that the ALJ applied the
proper legal standards, and his determination that Plaintiff is not disabled is
supported by substantial evidence.
ACCORDINGLY, it is hereby
ORDERED:
1.
The decision of the Commissioner is AFFIRMED.
2.
The Clerk of Court is directed to enter judgment pursuant to sentence
four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 8th day of November,
2016.
Copies: Counsel of record
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