Ward v. Commissioner of Social Security

Filing 19

ORDER regarding 1 Complaint filed by Willie Lee Ward. 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 1/16/2018. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIE LEE WARD,
Plaintiff,
v.

Case No: 8:16-cv-2716-T-JSS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER
Plaintiff, Willie Lee Ward, seeks judicial review of the denial of his claims for a period of
disability, disability insurance benefits, and 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 applications for disability insurance benefits and supplemental security
income on April 16, 2012. (Tr. 196–201, 204–10.) The Commissioner denied Plaintiff’s claims
both initially and upon reconsideration.

(Tr. 79–91, 99–109.)

Plaintiff then requested an

administrative hearing. (Tr. 110–12.) Upon Plaintiff’s request, the ALJ held a hearing at which
Plaintiff appeared and testified. (Tr. 26–44.) Following the hearing, the ALJ issued an unfavorable
decision finding Plaintiff not disabled and accordingly denied Plaintiff’s claims for benefits. (Tr.
10–20.) Subsequently, Plaintiff requested review from the Appeals Council, which the Appeals

Council denied. (Tr. 1–4.) 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 January 22, 2012. (Tr.
45.) Plaintiff has a limited education. (Tr. 18.) Plaintiff’s past relevant work experience included
work as a loader/unloader and construction worker. (Tr. 18.) Plaintiff alleged disability due to a
stroke, left leg pain and numbness, high blood pressure, headaches, and learning difficulties. (Tr.
31–35, 45.)
In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial
gainful activity since January 22, 2012, the alleged onset date. (Tr. 12.) After conducting a hearing
and reviewing the evidence of record, the ALJ determined that Plaintiff had the following severe
impairments: borderline intellectual functioning, being overweight, post-cerebrovascular accident,
hypertension, and diabetes. (Tr. 12.) 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 (“Listing”).
(Tr. 13–14.) The ALJ then concluded that Plaintiff retained the following residual functional
capacity (“RFC”):
[P]erform light work . . . except he can never climb ladders, ropes, or scaffolds but
can occasionally perform the remaining postural activities. He should avoid
concentrated exposure to hazards. He is further limited to unskilled work, SVP 1 or
2, simple, routine, and repetitive tasks.
(Tr. 15.) 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 his symptoms were not fully credible. (Tr. 15.)
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Considering Plaintiff's noted impairments and the assessment of a vocational expert
(“VE”), however, the ALJ determined that Plaintiff could not perform his past relevant work. (Tr.
18.) Given Plaintiff’s background and RFC, the VE testified that Plaintiff could perform other
jobs existing in significant numbers in the national economy, such as a cleaner (housekeeping), an
agricultural produce sorter, and a shoe packer. (Tr. 19.) Accordingly, based on Plaintiff’s age,
education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not
disabled. (Tr. 19–20.)
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 at any point in the sequential review, further inquiry is unnecessary.
20 C.F.R. § 416.920(a). 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 workrelated functions; (3) whether the severe impairment meets or equals the medical criteria of 20
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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 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).

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ANALYSIS
On appeal, Plaintiff argues that the ALJ erred at step three of the sequential process by
finding that Plaintiff does not meet Listing 12.05(B). (Dkt. 17.) In response, Defendant argues
that the ALJ properly evaluated whether Plaintiff meets Listing 12.05(B) and that Plaintiff does
not meet its criteria. (Dkt. 18.) For the reasons that follow, Plaintiff’s contention does not warrant
reversal.
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
show that an impairment meets a Listing, a claimant “must meet all of the specified medical
criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). “An impairment
that manifests only some of those criteria, no matter how severely, does not qualify.” Id.
To be considered for disability benefits for intellectual disability under Listing 12.05, a
claimant must first 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.
Social Security Administration, Program Operations Manual System, DI 34132.009, § 12.05,
Mental Listings from 12/18/07 to 09/28/16: 12.00 Mental Disorders (Effective Date: 09/18/00),
Obsolete Versions of Part A, the Listing of Impairments, (revised Jan. 13, 2017),
https://secure.ssa.gov/apps10/poms.nsf/lnx/0434132009

(“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.”); O’Neal v. Comm’r of Soc. Sec., 614 F. App’x 456, 459
(11th Cir. 2015) (“The introductory paragraph in 12.05 requires that [claimant] exhibit (1)

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significantly subaverage general intellectual functioning (2) with deficits in adaptive functioning
(3) that manifested before age 22.”).
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. DI 34132.009, § 12.05. (“The required
level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.”).
Relevant to this appeal, Section B of Listing 12.05 requires “[a] valid verbal, performance, or full
scale IQ of 59 or less.” Id. § 12.05(B). Therefore, in order to meet Listing 12.05(B), a claimant
must have a valid verbal, performance, or full scale IQ of 59 or less and “significantly subaverage
general intellectual functioning with deficits in adaptive functioning” that manifested before the
claimant was 22 years old. Id. § 12.00.A. (“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.”).
In the decision, the ALJ evaluated Plaintiff under Listing 12.05 and found that Plaintiff did
not meet the criteria of the Listing. (Tr. 13–14.) Specifically, concerning Listing 12.05(B), the
ALJ concluded as follows regarding Plaintiff’s IQ scores:
Turning to the requirements in paragraph B, they are not met because the claimant
does not have a valid verbal, performance, or full scale IQ of 59 or less. No recent
IQ scores are contained in the record; however, remote IQ tests from February
1982, when the claimant was 16 years old1 are available and show the claimant
achieved a verbal IQ score of 73, a performance IQ of 51, and a full scale IQ of 59.
Based on test scores, the claimant was determined to function within the mentally
deficient range of cognitive ability.
(Tr. 13.) The ALJ cites Plaintiff’s 1982 IQ scores from testing performed by the Polk County
school system, which were administered when Plaintiff was fifteen years old and in the eighth

1

As Plaintiff acknowledges (Dkt. 17 at 15), he was fifteen years old, not sixteen, at the time of this IQ testing.

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grade. (Tr. 386–90.) Plaintiff scored 73 for his verbal IQ, 51 for his performance IQ, and 59 for
his full scale IQ. (Tr. 390.)
Plaintiff argues that because the ALJ placed less weight on the validity of Plaintiff’s IQ
score because they were over thirty years old, the ALJ should have requested additional IQ testing
be performed. (Dkt. 17 at 9.) However, the case Plaintiff cites to support this contention is
inapposite. (Dkt. 17 at 9) (citing Berryman v. Massanari, 170 F. Supp. 2d 1180 (N.D. Ala. 2001)).
In Berryman, the ALJ rejected results of a recent IQ test because the examiner did not include a
statement that the IQ scores were valid. See Berryman, 170 F. Supp. 2d at 1185. The district
court, on appeal, found this finding “ludicrous” and unsupported by substantial evidence,
reasoning as follows:
It is ludicrous for the ALJ to assert that Dr. Lyons gave no indication as to the
validity of the plaintiff’s I.Q. scores while noting that he diagnosed the plaintiff as
functioning in the “extremely low” category. If Dr. Lyons did not believe the tests
were valid, he would not have made that diagnosis and there is nothing in his report
that even hints that he did not believe the scores to be valid. The ALJ’s finding that
the plaintiff’s I.Q. scores were not valid was based solely on his own unsupported
opinions as to the plaintiff’s mental capacity. The ALJ, therefore, “succumbed to
the [forbidden] temptation to play doctor and make [his] own independent medical
findings.” Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996). If the ALJ was in
doubt as to the validity of the plaintiff’s I.Q. scores, he should have sought
clarification of the test results from Dr. Lyons, or ordered additional testing.
Because of the Commissioner’s duty to develop the medical record fully and fairly
“it is reversible error for an ALJ not to order a consultative examination when such
an evaluation is necessary for him to make an informed decision.”
Id.
Unlike Berryman, here the ALJ found Plaintiff’s IQ scores from 1982 remote and “not
entirely relevant.” (Tr. 13.) Social Security regulations used to assess children’s disability claims
provide that “[i]t is of the utmost importance in evaluating mental deficiency that IQ test results
be sufficiently current to give an accurate and realistic picture of mental capacity,” and IQ scores
of 40 or above are considered current for two years for children over age seven. Social Security
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Administration, Program Operations Manual System, DI 24515.055, § D.1., Evaluation of Specific
Issues

Psychological/Psychometric

Testing,

(revised

Mar.

2,

2017),

https://secure.ssa.gov/apps10/poms.nsf/lnx/0424515055. District courts apply this standard in
evaluating the validity of IQ scores in adult disability cases. E.g., Wilson v. Colvin, No. 1:14-CV00066-MP-GRJ, 2015 WL 5047734, at *7 (N.D. Fla. Aug. 27, 2015) (“The scores which Plaintiff
contends bring her within listing 12.05B are not sufficiently current, as they are from 1978 when
Plaintiff was only twelve years old” and “the tests were conducted more than thirty years before
the ALJ rendered the decision in this case”); Seabrooks v. Colvin, No. 5:13CV89/EMT, 2014 WL
5483169, at *10 (N.D. Fla. Oct. 29, 2014) (finding that the ALJ did not err in finding thirty-yearold test scores invalid); Lewis v. Astrue, No. CIV.A. 08-0583-CB-M, 2009 WL 1904319, at *3
(S.D. Ala. July 1, 2009) (concluding that “the ALJ’s decision not to rely on [claimant’s] IQ test
results from twenty years earlier was proper” because claimant “was only fifteen at the time she
was first tested, so under the regulations, those results would no longer be considered current”);
Stutts v. Astrue, 489 F. Supp. 2d 1291 (N.D. Ala. 2007) (“Because these IQ scores were achieved
before the plaintiff reached the age of 16, they are not deemed to be valid as to the plaintiff’s
current level of intellectual functioning.”).
Accordingly, the ALJ did not err in finding Plaintiff’s 1982 IQ scores “not entirely
relevant.” Nonetheless, even if the ALJ erred by not finding the IQ scores valid, the ALJ’s findings
regarding Plaintiff’s adaptive functioning are supported by substantial evidence. While “[a] valid
IQ score of below 70 creates a rebuttable presumption that a claimant manifested deficits in
adaptive functioning before age twenty-two,” Rodriguez v. Comm’r of Soc. Sec., 633 F. App’x
770, 773 (11th Cir. 2015), “the Commissioner may present evidence relating to a claimant’s daily
life to rebut this presumption.” O’Neal, 614 F. App’x at 459 (citing Hodges v. Barnhart, 276 F.3d

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1265, 1269 (11th Cir. 2001)). Thus, valid IQ scores “need not be conclusive of mental retardation
where the I.Q. 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).
Regarding Plaintiff’s deficits in adaptive functioning, the ALJ concluded as follows:
Despite the claimant’s low scores, which are over 30 years old and not entirely
relevant presently, the record contains little to no evidence that the claimant has
deficits in adaptive functioning that initially manifested before age 22, and in fact,
the record supports that he sustains a high level of adaptive functioning. Although
the claimant states he depends on services from the Salvation Army where he lives,
he independently cares for his personal needs, he maintains a romantic relationship
his wife, he has 5 children, he has worked in the past, and despite completing only
7th grade, he indicated that he is able to read and write some (Exhibits 5F, 9F;
Hearing Testimony). These above factors are not consistent with the required
adaptive deficits, and as such, the claimant does not satisfy the paragraph B criteria.
(Tr. 13–14.) Plaintiff argues that his testimony that he does not live independently, cook, do
laundry or yard work, or go to the grocery store, and is unable to read (Tr. 30, 34, 36–37), lessens
the import of the evidence of daily activities the ALJ relied on and demonstrates Plaintiff’s deficits
in adaptive functioning. (Dkt. 17 at 7–8.) The standard this Court must follow, however, is
whether substantial evidence supports the ALJ’s decision. Rodriguez, 633 F. App’x at 774 (finding
the ALJ’s decision that claimant did not have deficits in adaptive functioning supported by
substantial evidence despite “other evidence in the record [that] may support [claimant’s]
arguments”). At his hearing before the ALJ, Plaintiff testified that he is able to dress and bathe
himself, clean his room when he does not have pain in his leg, and count money. (Tr. 34, 37.)
Accordingly, the Court “cannot say that the ALJ’s decision is not supported by substantial
evidence.” Rodriguez, 633 F. App’x at 774. Therefore, because the ALJ did not err in determining
that Plaintiff does not meet Listing 12.05(B), reversal is unwarranted.
CONCLUSION
Accordingly, after due consideration and for the foregoing reasons, it is
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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 January 16, 2018.

Copies furnished to:
Counsel of Record

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