Small v. Commissioner of Social Security

Filing 24

ORDER re 1 Complaint filed by Willie Mae Small. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter final judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Julie S. Sneed on 4/8/2016. (JR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIE MAE SMALL,
Plaintiff,
v.

Case No: 8:15-cv-1031-T-JSS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER
Plaintiff, Willie M. Small, seeks judicial review of the denial of her claim for supplemental
security income. As the Administrative Law Judge’s (“ALJ”) decision was based on substantial
evidence and employed proper legal standards, the decision is affirmed.
BACKGROUND
A. Procedural Background
Plaintiff filed an application for supplemental security income on February 7, 2012. (Tr.
13.) The Commissioner denied Plaintiff’s claim both initially and upon reconsideration. (Tr. 13.)
Plaintiff then requested an administrative hearing. (Tr. 13.) Upon Plaintiff’s request, the ALJ held
a hearing at which Plaintiff appeared and testified. (Tr. 13.) Following the hearing, the ALJ issued
an unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s claim for
benefits. (Tr. 10–25.) Subsequently, Plaintiff requested review from the Appeals Council, which
the Appeals Council denied. (Tr. 1–9.) Plaintiff then timely filed a complaint with this Court.
(Dkt. 1.) The case is now ripe for review under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).

B. Factual Background and the ALJ’s Decision
Plaintiff, who was born in 1966, claimed disability beginning on December 1, 2011. (Tr.
13, 23.) Plaintiff has a limited education, having completed the ninth grade. (Tr. 23, 34.)
Plaintiff’s past relevant work experience included work as a cleaner. (Tr. 23.) Plaintiff alleged
disability due to back pain and hip pain. (Tr. 18, 194, 213.)
In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial
gainful activity since February 7, 2012, the application date. (Tr. 15.) After conducting a hearing
and reviewing the evidence of record, the ALJ determined that Plaintiff had the following severe
impairments: degenerative disc disease, degenerative joint disease, and obesity.

(Tr. 15.)

Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17.) The ALJ then concluded that
Plaintiff retained a residual functional capacity (“RFC”) to perform light work with occasional
stooping and crouching. (Tr. 17.) In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s
subjective complaints and determined that, although the evidence established the presence of
underlying impairments that reasonably could be expected to produce the symptoms alleged,
Plaintiff’s statements as to the intensity, persistence, and limiting effects of her symptoms were
not fully credible. (Tr. 18.)
Considering Plaintiff’s noted impairments and the assessment of a vocational expert
(“VE”), the ALJ determined that Plaintiff could perform her past relevant work as a cleaner. (Tr.
23.) Given Plaintiff’s background and RFC, the VE testified that Plaintiff could perform her past
relevant work as a cleaner, as well as other jobs existing in significant numbers in the national
economy, such as a cashier, ticket taker, and laundry folder. (Tr. 23–24.) Accordingly, based on

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Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the ALJ found
Plaintiff not disabled. (Tr. 24.)
APPLICABLE STANDARDS
To be entitled to benefits, a claimant must be disabled, meaning that the claimant must be
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical,
physiological, or psychological abnormalities that are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration, in order to regularize the adjudicative process,
promulgated the detailed regulations currently in effect. These regulations establish a “sequential
evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920. If an
individual is found disabled or not disabled at any point in the sequential review, further inquiry
is unnecessary. 20 C.F.R. § 416.920(a)(4). Under this process, the ALJ must determine, in
sequence, the following: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment, i.e., one that significantly limits the
ability to perform work-related functions; (3) whether the severe impairment meets or equals the
medical criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1; and, (4) whether the claimant can
perform his or her past relevant work. If the claimant cannot perform the tasks required of his or
her prior work, step five of the evaluation requires the ALJ to decide if the claimant can do other
work in the national economy in view of the claimant’s age, education, and work experience. 20

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C.F.R. § 416.920(a). A claimant is entitled to benefits only if unable to perform other work.
Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); 20 C.F.R. § 416.920(g).
A determination by the Commissioner that a claimant is not disabled must be upheld if it
is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C.
§ 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1996). While the court reviews the Commissioner’s decision with deference to the
factual findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In reviewing the Commissioner’s decision, the court may not decide the facts anew, reweigh the evidence, or substitute its own judgment for that of the ALJ, even if it finds that the
evidence preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the reviewing
court sufficient reasoning for determining that he or she has conducted the proper legal analysis,
mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining
whether the findings of the Commissioner are supported by substantial evidence and whether the
correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002).
ANALYSIS
Plaintiff challenges the ALJ’s decision on the basis that the ALJ failed to properly consider
whether Plaintiff’s intellectual disability meets or equals the requirements of Listing 12.05.
Specifically, Plaintiff contends that she meets the criteria in Listing 12.05(C) because she has a

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valid verbal IQ score of 57 and additional severe impairments of degenerative disc disease,
degenerative joint disease, and obesity. Plaintiff further argues that the ALJ failed to make a
finding regarding whether Plaintiff had deficits in adaptive functioning and failed to provide
analysis regarding whether Plaintiff’s impairments were equal in severity to Listing 12.05. For
the reasons that follow, these contentions do not warrant reversal.
In this case, the ALJ found at step one that Plaintiff had not engaged in substantial gainful
activity since the application date and proceeded to step two to consider whether Plaintiff had a
severe medically determinable physical or mental impairment of required duration. (Tr. 15.) 20
C.F.R. § 416.920(a)(4)(i). At step two, the ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease, degenerative joint disease, and obesity. (Tr. 15.) 20
C.F.R. § 416.920(a)(4)(ii). At this step, the ALJ determined that Plaintiff’s borderline intellectual
functioning was not a severe impairment because it did not cause more than minimal limitation in
her ability to perform basic work activities. (Tr. 15.) 20 C.F.R. § 416.920(a)(5)(c). Upon finding
the existence of a severe impairment, the ALJ proceeded to the third step of the sequential
evaluation process to consider whether Plaintiff’s severe impairments met or equaled one of the
listed impairments in Appendix 1 to Subpart P of 20 C.F.R. Part 404.

20 C.F.R. §

416.920(a)(4)(iii).
At the third step of the sequential analysis, a claimant must show that his or her impairment
meets or equals a listed impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). To
be considered for disability benefits for intellectual disability under Listing 12.05, a claimant must
satisfy the diagnostic description in the introductory paragraph for the listing, which requires that
a claimant demonstrate significantly subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested before age twenty-two. 20 C.F.R. Part 404, Subpart P,

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Appendix 1, Listing 12.05; see also Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 42 (text rev., 4th ed. 2000) (stating 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”). In addition to meeting the diagnostic threshold, a claimant
must meet the severity requirements in Section A, B, C, or D of Listing 12.05. 20 C.F.R. Part 404,
Subpart P, Appendix 1, Listing 12.05. Relevant to this appeal, Section C of Listing 12.05 requires
the following: (1) evidence of a valid IQ score of 60 to 70; and (2) evidence of an additional mental
or physical impairment imposing an additional and significant work-related limitation of function.
Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001). Therefore, Listing 12.05(C) requires
that a “claimant meet[] the diagnostic criteria of Listing 12.05, including deficits in adaptive
functioning; a qualifying IQ score; onset before age 22; and the requisite deficits in work-related
functioning.” Perkins v. Comm’r, Soc. Sec. Admin., 553 F. App’x 870, 873 (11th Cir. 2014). To
show that an impairment matches a listing, a claimant “must meet all of the specified medical
criteria.” Sullivan v. Zebley, 493 U.S. 521, 530, (1990). “An impairment that manifests only some
of those criteria, no matter how severely, does not qualify.” Id.
A valid IQ score of below 70 creates a rebuttable presumption that a claimant manifested
deficits in adaptive functioning before age twenty-two. Hodges, 276 F.3d at 1268–69. However,
once a claimant demonstrates a valid IQ score below 70, the ALJ can rebut this presumption by
presenting evidence relating to the claimant’s daily life. O’Neal v. Comm’r of Soc. Sec., 614 F.
App’x 456, 459 (11th Cir. 2015) (citing Hodges, 276 F.3d at 1269). Further, the ALJ is not
required to rely on the results of an IQ test alone in determining intellectual disability. Popp v.
Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986). Rather, the ALJ must consider the test results in

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conjunction with the other evidence in the record and must examine the test results to “assure
consistency with daily activities and behavior.” Id. As such, a valid IQ score is not conclusive of
intellectual disability if the “score is inconsistent with other evidence in the record on the
claimant’s daily activities and behavior.” Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992).
In this case, Plaintiff was tested using the Wechsler Intelligence Scale for Children—
Revised (“WISC-R”), which yields a verbal, performance, and full scale IQ score. The record in
this case includes three sets of IQ scores derived from this test. (Tr. 233–239.) In December 1975,
when Plaintiff was nine years old and in the third grade, she achieved a verbal IQ score of 57, a
performance IQ score of 70, and a full scale IQ of 60. (Tr. 233.) In May 1978, when Plaintiff was
twelve years old and in the fifth grade, she achieved a verbal IQ of 57, a performance IQ of 80,
and a full scale IQ of 67. (Tr. 236.) In April 1981, when Plaintiff was fourteen years old and in
the ninth grade, she achieved a verbal IQ of 60, a performance IQ of 80, and a full scale IQ of 69.
(Tr. 238.)
In his decision, the ALJ evaluated Plaintiff under Listing 12.05 for intellectual disability
and found that Plaintiff did not meet the criteria of the listing. (Tr. 16.) Specifically, the ALJ
stated the following:
Turning to listing 12.05 (Intellectual Disability), the requirements in paragraphs A,
B, or C are not met. There is no evidence of mental incapacity evidenced by
dependence upon others for personal needs (e.g., toileting, eating, dressing, or
bathing) and inability to follow directions, such that the use of standardized
measures of intellectual functioning is precluded. Nor is there evidence of any valid
verbal, performance, or full scale IQ of 59 or less or valid verbal, performance, or
full scale IQ of 60 through 70 with a physical or other mental impairment imposing
an additional and significant work-related limitation of function. The records
include educational records dating from 1975 to 1980. (Ex. 13E). A psychological
report from 1975, when the claimant was nine years of age, notes that the claimant
was placed in special education services. (Ex. 13E, pg. 4–5). Wechsler Intelligence
Scale for Children (WISC-R) testing returned a full-scale IQ score of 60,
performance scale of 70, and verbal IQ of 57. Despite her intellectual limitations,
the claimant reported [she] was able to perform self-care tasks, initiate academic

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tasks at home, and handle all chores and responsibilities at home and in the
classroom. Repeat testing from 1986, when the claimant was 14 years of age
showed that the claimant had a full scale IQ of 69, verbal IQ of 60, and performance
IQ of 80. (Ex. 13E, pg. 8–9). Academic testing showed that the claimant was at
the third grade level in reading and math. While these scores fall within the criteria
listed above, the earnings and other records show that the claimant has had a steady
history of working at substantial gainful activity levels. (Exs. 5D, 3E). The
claimant also identified herself as the owner of a cleaning business. For these
reasons along with reports of full adaption, the undersigned does not find that the
claimant meets any of the criteria of Listing 12.05.
(Tr. 16) As such, the ALJ acknowledged that Plaintiff had a low IQ score that fell within the
criteria under Listing 12.05, but he determined that Plaintiff did not have the deficits in adaptive
functioning necessary to meet Listing 12.05. Contrary to Plaintiff’s argument, the ALJ’s decision
indicates that Plaintiff’s “reports of full adaption” were inconsistent with a finding of deficits in
adaptive functioning. See Bouler v. Comm’r of Soc. Sec., 624 F. App’x 728, 729 (11th Cir. 2015)
(finding that the ALJ implicitly determined that the claimant did not have the requisite deficits in
adaptive functioning by presenting evidence relating to the claimant’s daily life). The ALJ further
found that “[n]o treating or examining physician has mentioned findings equivalent in severity to
the criteria of any listed impairment, nor does the evidence show medical findings that are the
same or equivalent to those of any listed impairment of the Listing of Impairments.” (Tr. 17.) See
Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (stating that if the
claimant contends that the impairment equals a listed impairment, then the claimant must “present
evidence which describes how the impairment has such an equivalency”).
Upon review of the record, the Court finds that substantial evidence supports the ALJ’s
determination that Plaintiff failed to satisfy the criteria under Listing 12.05 because Plaintiff did
not demonstrate deficits in adaptive functioning necessary to satisfy the diagnostic description in
the listing. See Perkins, 553 F. App’x at 873 (finding that the ALJ did not discredit the validity of
the claimant’s IQ tests, but only concluded that the claimant did not suffer from intellectual

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disability as defined under Listing 12.05 because the claimant’s deficits in adaptive functioning
were not reflective of intellectual disability). Plaintiff performed a wide range of activities of daily
living, including reading and writing, using the computer, counting small bills, cooking and
preparing simple meals, watching television, shopping for groceries, personal grooming, and
driving. (Tr. 34–43.) See O’Neal, 614 F. App’x at 460 (finding that the claimant did not have
sufficient adaptive functioning deficits to meet the requirements of the diagnostic description in
Listing 12.05, despite his low IQ, when he helped with light yard work, cared for his two children,
independently performed activities of personal care and daily living, and drove locally three times
per week). To the extent that Plaintiff alleged difficulty in performing these activities, with the
exception of high-level reading and math, she alleged difficulty based on her physical spine and
hip pain, not her cognitive limitations. (Tr. 36–43.) Indeed, when asked what problems prevented
her from working, Plaintiff testified that she is unable to work because she cannot sit or stand for
prolonged periods and has to constantly move to ease her pain. (Tr. 37.) Aside from the test
results discussed above, the record is devoid of any other evidence regarding Plaintiff’s cognitive
limitations or deficits in adaptive functioning.
Further, substantial evidence supports the ALJ’s finding that Plaintiff’s work history is
inconsistent with a finding of intellectual disability under Listing 12.05. The record reflects that
Plaintiff worked as a housekeeper for eight to nine years, a caregiver at a daycare for two years,
and then most recently as a house cleaner and owner of a cleaning business. (Tr. 36–37.) In light
of this, the ALJ committed no error in considering Plaintiff’s work history in evaluating the
conclusive nature of Plaintiff’s low IQ score. See Lowery, 979 F.2d at 837 (finding that an IQ
score is not conclusive of intellectual disability when it is inconsistent with other evidence in the
record on the claimant’s daily activities and behavior). Therefore, the ALJ properly relied on the

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record as a whole in determining that Plaintiff adaptively functioned higher than that required by
Listing 12.05, and the ALJ’s decision is supported by substantial evidence. See Garrett v. Astrue,
244 F. App’x 937, 939 (11th Cir. 2007) (finding that the ALJ did not err in determining that the
required limitations in adaptive functioning were not present, despite the claimant’s low IQ score,
based on the claimant’s activities of daily living and work history).
While Plaintiff challenges the ALJ’s decision based on Plaintiff’s additional severe
impairments, the existence of these impairments does not affect the ALJ’s decision because the
ALJ determined that Plaintiff did not have deficits in adaptive functioning to meet Listing 12.05,
irrespective of whether she met other requirements. As stated above, a claimant must meet the
diagnostic threshold in Listing 12.05 “in addition to one of the four sets of criteria found in
12.05(A), (B), (C), or (D) in order to show that his impairments are severe enough to meet or equal
Listing 12.05.” Perkins, 553 F. App’x at 872; see also 20 C.F.R. Pt. 404, Subpt. P, App. 1
(providing that a claimant’s impairment must satisfy the diagnostic description in the introductory
paragraph and any one of the four sets of criteria in the listing for a claimant to meet Listing 12.05).
Specifically, Section 12.00 provides:
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, we will find that your impairment meets the listing.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 (emphasis added). Further, “[i]n order to meet a
Listing, the claimant must meet all of the specified medical criteria, and an impairment that fails
to do so does not qualify no matter how severely it meets some of the criteria.” Perkins, 553 F.
App’x at 872. Therefore, the ALJ did not err in finding that Plaintiff did not meet Listing 12.05

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on the basis that she failed to meet the diagnostic criteria provided in the listing, which is supported
by substantial evidence.
CONCLUSION
Accordingly, after due consideration and for the foregoing reasons, it is
ORDERED:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk of Court is directed to enter final judgment in favor of the Commissioner
and close the case.
DONE and ORDERED in Tampa, Florida, on April 8, 2016.

Copies furnished to:
Counsel of Record

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