Fowler v. Commissioner of Social Security

Filing 27

ORDER adopting 25 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Melissa Fowler. The Report and Recommendation 25 is ACCEPTED and ADOPTED and the findings incorporated herein. The Commissioner of Social Security's decision 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 of Social Security, and close the file. Signed by Judge Sheri Polster Chappell on 8/2/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MELISSA FOWLER,
Plaintiff,
v.

Case No: 2:16-cv-665-FtM-38CM

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on United States Magistrate Judge Carol
Mirando’s Report and Recommendation.

(Doc. 25).

Judge Mirando recommends

affirming the Commissioner of Social Security’s final decision to deny Plaintiff Melissa
Fowler’s application for supplemental security income (“SSI”).

Fowler has filed an

Objection to the Report and Recommendation. (Doc. 26). The Commissioner has not
responded to the objection, and the time to do so has expired. Thus, this matter is ripe
for review.
BACKGROUND
The Report and Recommendation discusses the facts and medical evidence at
length. (Doc. 25 at 6-16). For brevity’s sake, the Court will briefly state the procedural

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background. Five years ago, Fowler applied for SSI because of her alleged chronic
obstructive pulmonary disease, impulse control disorder, depression, and learning
disability.

(Doc. 15-3 at 12).

After a hearing, ALJ Joseph L. Brinkley denied her

application because she could perform light work subject to certain limitations. (Tr. at 19).
The Appeals Council denied Fowler’s request for review. (Tr. 1). This appeal ensued.
STANDARDS OF REVIEW
To be eligible for SSI, a claimant must be under a disability. 42 U.S.C. § 1382(a);
20 C.F.R. § 416.912.

To determine if a claimant has proven she is disabled, an

administrative law judge must complete a five-step sequential evaluation process. See
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). This process is well-known and
otherwise stated in the Report and Recommendation. (Doc. 25 at 4). The claimant bears
the burden of persuasion through step four and, at step five, the burden shifts to the
Commissioner. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
The scope of this Court’s review is limited to evaluating the ALJ’s decision for
substantial evidence and his application of legal principles de novo. See James v.
Comm’r of Soc. Sec., 657 F. App’x 835, 837 (11th Cir. 2016); Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 115, 1158 (11th Cir. 2004)
(quotations omitted). The court may not reweigh the evidence and decide the facts anew,
and must defer to the ALJ’s decision if it is supported by substantial evidence. See Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); see also James, 657 F. App’x at 837.

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In addition, a district judge “may accept, reject, or modify in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” Id. And
“[t]he judge may also receive further evidenced or recommit the matter to the magistrate
judge with instructions.” Id.
DISCUSSION
On appeal, Fowler raises three challenges to the ALJ’s decision. First, she argues
that the ALJ failed to decide explicitly if she has an intellectual disability that meets Listing
12.05 to render her presumptively disabled. Second, Fowler maintains that the ALJ
accorded too little weight to the psychological assessment of Noble Harrison, Ph.D, a
vocational counselor. Third, she asserts that substantial evidence does not support the
ALJ’s finding that she can perform a significant number of jobs in the national economy.
Judge Mirando recommends rejecting Fowler’s challenges. She recommends that
the ALJ implicitly found Fowler does not meet Listing 12.05 and that, even if Fowler meets
the criteria, the ALJ rebutted the presumption by presenting substantial evidence of her
daily activities. (Doc. 25 at 21-27). Next, Judge Mirando recommends that Dr. Harrison’s
opinion on Fowler’s employability is not a medical opinion. (Doc. 25 at 28). She also
recommends that the ALJ was not required to give any particular weight to the vocational
evaluation by Successful Pathways, LLC. (Doc. 25 at 29-30). Finally, Judge Mirando
recommends that the ALJ properly relied on the vocational expert’s testimony to find that
Fowler can perform a significant number of jobs in the national economy. (Doc. 25 at 3136).

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Fowler now objects to Judge Mirando’s first and second recommendations, namely
that the ALJ did not explicitly evaluate her claim under Listing 12.05 and that he failed to
consider Successful Pathway’s vocational evaluation.

The Court will address each

objection in turn.
A. Listing 12.05
Fowler argues that the ALJ erred at the third step of the sequential analysis by
failing to conclude she meets Listing 12.05, which covers intellectual disability. To prevail
at step three, Fowler must provide evidence showing that her impairment meets all of the
criteria in the Listing. If her impairment meets the criteria, she is “conclusively presumed
to be disabled,” and the ALJ should have approved her application. See Crayton v.
Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
To qualify under Listing 12.05, a claimant must meet the diagnostic criteria in the
listing’s introductory paragraph. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00 (“Listing
12.05 contains an introductory paragraph with the diagnostic description for intellectual
disability.”). The criteria is the claimant “must at least (1) have significantly subaverage
general intellectual functioning; (2) have deficits in adaptive behavior; and (3) have
manifested deficits in adaptive behavior before age 22.” Crayton, 120 F.3d at 1219.
“[A]daptive 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.”
James, 657 F. App’x at 837 n.2 (stating that courts look to the Diagnostic and Statistical
Manual of Mental Disorders for guidance on deficits in adaptive functioning) (internal
quotations and citation omitted).

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In addition to the diagnostic criteria in Listing 12.05’s introductory paragraph, a
claimant must meet the specific severity requirements in one of the subparagraphs, A
through D. Fowler argues that she qualifies under 12.05(C), which requires “[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(C). A qualifying IQ score creates a rebuttable
presumption that a claimant showed deficits in adaptive functioning before age 22. See
Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001); Lowrey v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992).

But the Commissioner may rebut the presumption with

evidence about the claimant’s daily life. See Hodges, 276 F.3d at 1269; see also Harris
v. Comm’r of Soc. Sec., 330 F. App’x 813, 815 (11th Cir. 2009) (citing school
performance, work history, and activities of daily living as evidence of plaintiff’s adaptive
functioning).
Here, the ALJ did not explicitly discuss whether Fowler met Listing 12.05(C). But
his failure to mention the Listing is not dispositive. See James, 657 F. App’x at 838
(stating “a finding that a claimant’s impairments are not contained in a Listing may be
implied from the ALJ’s decision”); Rodriguez v. Comm’r of Soc. Sec., 633 F. App’x 770,
773-74 (11th Cir. 2015) (noting an ALJ can rely on a plaintiff’s “daily activities and work
history to conclude that [the plaintiff] did not manifest deficits in adaptive functioning
consistent with intellectual disability”). A finding that Fowler lacked adaptive deficits can
be implied from his conclusion that she has a mild restriction in activities of daily living
and moderate difficulties in social functioning and in concentration, persistence, or pace.
(Tr. at 17-18).

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The question then becomes whether there is substantial evidence to support the
conclusion that Fowler lacked adaptive deficits. The answer is yes. As the ALJ2 and
Judge Mirando noted, Fowler is independent in all activities of daily living. (Tr. 23). She
also cares for the needs of her toddler daughter and interacts regularly with her sister.
(Tr. 23-24, 314). She takes public transportation, uses computers at the library, and
handles a savings account. (Tr. at 24, 244, 313, 464, 468). She also prepares simple
meals daily, shops for food in stores, and performs household chores. (Tr. 312-13). She
also does not need help or encouragement to do these tasks. She was never diagnosed
with a mental hindrance, only borderline intellectual functioning. She can read and she
did well in special education classes. Thus, substantial evidence supports the implicit
finding that Fowler does not have the necessary deficits in adaptive function to meet
Listing 12.05(C).
B. Consideration of medical evidence
Next, Fowler argues that the ALJ erred in not considering the vocational evaluation
conducted by Successful Pathways, LLC. (Doc. 26 at 4-5). Two days after the hearing,
Fowler submitted to the ALJ a Situational Vocation Evaluation dated June 30, 2014. (Tr.
348-76). Two vocational specialist evaluated Fowler and determined that she did not
have the capacity for full-time work. (Tr. 375). Fowler argues that the ALJ failed to
consider this evidence. (Doc. 26 at 5).

The ALJ found Fowler’s “statements concerning the intensity, persistence and limiting
effects of [her] symptoms [to be] not entirely credible.” (Tr. 21). In addition, the ALJ found
that “[t]he medical evidence of record is replete with evidence that [Fowler] has failed to
take her medications as they have been prescribed and she had not followed up with her
doctors as they have recommended . . . Such conduct seems inconsistent with a claimant
suffering from a severe, disabling condition.” (Tr. 23-24).
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Fowler’s objection is a nonstarter. The vocational specialists are not physicians or
psychologists, and thus were not “acceptable medical sources” under the regulations.
See 20 C.F.R. § 416.913(a) (providing that acceptable medical sources include licensed
physicians and psychologists). At best, they are other medical sources. See SSR 0603p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006) (explaining that medical sources include
both acceptable medical sources and other health care providers who are not acceptable
medical sources). Even if the ALJ was required to consider the vocational specialists’
opinions as other medical sources, he “was not required to give their opinions controlling
weight over the opinions of acceptable medical sources” such as Nancy Kelly, Psy.D.
See Farnswoth v. Soc. Sec. Admin., 636 F. App’x 776, 784-85 (11th Cir. 2016) (finding
the ALJ properly discounted the medical source statements of mental health counselors
who were other medical sources). In other words, the vocational specialists’ opinions are
not medical opinions entitled to any special significance or consideration. See Miles v.
Soc. Sec., 469 F. App’x 743, 745 (11th Cir. 2012) (stating “even a medical source’s
statement that a claimant is ‘unable to work’ or ‘disabled’ does not bind the ALJ, who
alone makes the ultimate determination as to disability under the regulations” (citations
omitted)). In addition, the evidence does not reveal that the ALJ ignored the opinions,
especially given that he stated he carefully considered the entire record. (Tr. 16). Fowler
has not made any plausible argument to suggest otherwise. The Court, therefore, rejects
Fowler’s objection on the ALJ’s consideration of the Situational Vocation Evaluation.
Accordingly, it is now
ORDERED:

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(1) The Report and Recommendation (Doc. 25) is ACCEPTED and ADOPTED
and the findings incorporated herein.
(2) The Commissioner of Social Security’s decision is AFFIRMED.
(3) 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 of Social Security, and close
the file.
DONE and ORDERED in Fort Myers, Florida this 1st day of August 2017.

Copies: All Parties of Record

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