Watson v. Commissioner of Social Security

Filing 19

OPINION AND ORDER affirming the Commissioner's decision. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 9/14/2022. (MDH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANGELA WATSON,
Plaintiff,
v.

Case No. 8:21-cv-1212-MCR

ACTING COMMISSIONER OF
THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.
___________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an
unfavorable decision regarding her application for Supplemental Security
Income (‘SSI”), alleging disability beginning July 2, 2018. (Tr. 17.) Following
an administrative hearing held on October 5, 2020, the assigned
Administrative Law Judge (“ALJ”) issued a decision, finding Plaintiff not
disabled since July 2, 2018, the date the application was filed. (Tr. 20.)
Based on a review of the record, the briefs, and the applicable law, the
Commissioner’s decision is AFFIRMED.

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 12.)
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I.

Standard of Review

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings
are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389,
390 (1971). “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 1155, 1158 (11th
Cir. 2004). 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 evidence preponderates 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 district court must view the evidence as a
whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery
v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating the court must
scrutinize the entire record to determine the reasonableness of the
Commissioner’s factual findings).
II.

Discussion

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A.

Issues on Appeal

Plaintiff raises three issues on appeal all of which relate to the ALJ’s
consideration of her intellectual functioning. First, Plaintiff argues that
“[t]he ALJ’s determination that [her] [intelligence quotient (“IQ”)] scores were
not valid is an error of law.” (Doc. 17 at 15.) Plaintiff explains that:
The ALJ in this case rejected [Plaintiff’s] IQ tests from
school based upon a prior ALJ’s finding that IQ tests of above 40
obtained before the age of 16 are generally current for no more
than two years, citing POMS DI 24515.005. This ALJ was then
[sic] stated that [Plaintiff’s] school IQ tests were “out of date” and
thus not valid. The ALJ then went on to state that there was no
evidence of a valid IQ test on this record, and thus, [Plaintiff]
could not meet the listing for an intellectual disorder.
Interestingly, that POM[S] the ALJ relied on to reject [Plaintiff’s]
school IQ tests states that “when results obtained in the past are
incompatible with current behavior, current testing will be
required.” POMS DI 24515.005. Thus, the POM[S] would require
that the results of having an old or outdated IQ test is not to
simply ignore the results, but to get current testing. That is what
the ALJ in this case refused to do.
The three IQ tests given to [Plaintiff] over her school years
were very consistent in rating her IQ in the 50’s [sic] range on the
Weschler test. Although IQ’s [sic] can change over time, the fact
that [Plaintiff] was consistently rated in that range as a child
should be enough evidence of an intellectual problem as to
required [sic] current testing, not assumption that [Plaintiff]
somehow improved her intellectual abilities so that there were no
problems in this area. This is especially true since Peace River
diagnosed her with borderline intellectual functioning as an
adult.”
(Tr. 15-16 (internal citations omitted).)
Plaintiff’s second argument is that substantial evidence does not
support the ALJ’s determination that there was no finding of significant
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deficits in adaptive functioning. (Id. at 17.) Despite the ALJ’s conclusion of
no significant deficits of adaptive functioning, Plaintiff asserts, “there was
much evidence of [Plaintiff’s] limitations in her ability to learn, and use
conceptual, social, and practical skills in dealing with common life demands,
as well as her dependence on others to care for [her] personal [needs].” (Id. at
20.) Lastly, Plaintiff argues that the ALJ failed to fulfill his duty to develop
the record by refusing to obtain a consultative evaluation that included an IQ
test. (Id. at 24.)
Defendant responds that Plaintiff’s argument that three IQ tests from
grade school should satisfy Listing 12.05 was properly rejected and that her
reliance on Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001) to suggest
that IQ scores are always valid was misplaced. (Doc. 18 at 8.) As to
Plaintiff’s second argument, Defendant discussed the ALJ’s findings as they
relate to Plaintiff’s objective medical records and explained that “Plaintiff
attempts to overcome the substantial evidence supporting the ALJ’s decision
almost exclusively through her own statements, many of which are
inconsistent with other notes in the record.” (Id. at 13.) Regarding Plaintiff’s
third issue, the ALJ’s duty to develop the record, Defendant argues that
remand “would not change the outcome on the ultimate finding of disability
because the ALJ appropriately found that Plaintiff did not have any more
than moderate mental limitations.” (Id. at 15.)
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B.

The ALJ’s Decision

At step one of the sequential evaluation process2, the ALJ found that
Plaintiff had not engaged in substantial gainful activity (“SGA”) since July 2,
2018. (Tr. 22.) At step two, he found that Plaintiff had the following severe
impairments: “diabetes mellitus, history of uterine fibroids status post
hysterectomy, obesity, borderline intellectual functioning, and depression.”
(Id.) Then, at step three, the ALJ stated that “[t]he severity of the claimant’s
mental impairments, considered singly and in combination, [did] not meet or
medically equal the criteria of listing 12.04, 12.05, and 12.11.” (Tr. 24.)
Before proceeding to step four, the ALJ determined that Plaintiff had
the residual functional capacity (“RFC”) to perform light work with the
following additional limitations: “[frequent] climb[ing], balance[ing],
stoop[ing], kneel[ing], crouch[ing], and crawl[ing]”; avoiding concentrated
exposure to extreme cold or heat, humidity, vibration, and workplace
hazards, including unprotected heights and moving machinery; and limited
to simple, routine tasks with no fast pace production work and without strict
production demands. (Tr. 27.) The ALJ explained:
The claimant’s representative argued that the claimant had an
intellectual disorder that meets listing 12.05; however, there is
no support for finding an intellectual disorder.

The Commissioner employs a five-step process in determining disability.
See 20 C.F.R. § 416.920(a).
2

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When the claimant was in first grade, she had an evaluation with
intelligence testing. However, it was noted the claimant
demonstrated the type of test behavior that would seem to
depress her score and therefore the validity of the testing was
questioned. It was further noted that the evaluation indicated
the claimant had the potential to function in the borderline range
or perhaps higher. Her withdrawn behavior and unwillingness to
communicate make her low test scores suspect and a valid
estimate of her ability could not be obtained at this time. She had
further testing in third grade at the age [of] nine that found
similar intelligence scores resulting from testing; however, there
is no later testing in evidence (Exhibit C21F). In addition, as was
pointed out in the prior decision, IQ results of 40 and above
obtained before the age of sixteen are generally current for no
more than two years, making her prior test results out of date
(POMS DI 24515.055). It was also noted [that] the claimant had
no more recent intellectual testing to indicated [sic] present IQ in
this range and therefore the claimant did not have a valid IQ in
the range to qualify as intellectual disorder and did not meet the
criteria of listing 12.05.
...
Further, even if the claimant [was] found to have an IQ to qualify
as intellectual disorder, the claimant does not show significant
deficits in adaptive functioning currently manifested by
dependence upon others for personal needs and the claimant does
not have significant deficits in adaptive functioning currently
manifested by extreme limitation in one of the B criteria area, or
marked limitation of two of the B criteria areas of mental
functioning. The undersigned [finds] there is no support for a
finding of intellectual disorder and the claimant does not meet or
medically equal listing 12.05.
...
In understanding, remembering or applying information, the
claimant has a moderate limitation. The claimant alleged that
she was in ESE classes in school and has difficulty with reading,
but indicated that she can add and subtract. . . .
In interacting with others, the claimant has a moderate
limitation. According to her statements, the claimant is also able
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to get along with others, shop, take public transportation, and
deal appropriately with authority. . . .
With regard to concentrating, persisting, or maintaining pace,
the claimant has a moderate limitation. The claimant reported
she can prepare simple meals, watch television, play games, and
count change. Additionally, the record fails to show significant
distractibility. . . .
As for adapting or managing oneself, the claimant has
experienced a mild limitation. The claimant stated that she is
able to handle self-care and personal hygiene with some help
from her husband due to physical limitations, care for pet, and
provide care for her mother-in-law (Exhibits C5E, C14E, C23F). .
..
I have also considered whether the “paragraph C” criteria are
satisfied. In this case, the evidence fails to establish the presence
of the “paragraph C” criteria. The record does not establish that
the claimant has only marginal adjustment, that is, a minimal
capacity to adapt to changes in the claimant’s environment or to
demands that are not already part of the claimant’s daily life.
(Tr. 24-26.)
At step four, the ALJ found that Plaintiff had no past relevant work.
(Tr. 35.) Finally, at step five, considering Plaintiff’s age, education, work
experience, RFC, and the vocational expert’s (“VE”) testimony, the ALJ found
that there were jobs existing in significant numbers in the national economy
that the Plaintiff can perform, including hotel housekeeper, price marker,
and office helper. (Tr. 36.)
C.

Vocational Expert’s Testimony

During hypothetical questioning by the ALJ, the VE testified as
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follows:
Q.
Okay. I’d like to assume then a hypothetical individual—
let me see here . . . with . . . a limited education, with the same
age as the claimant [sic]. And further assume that the education
that the individual would be limited [to], for the first
hypothetical, the individual [would] be limited to light work as it
is defined by the Dictionary of Occupational Titles. But the
individual [would] be limited to frequent—no more than frequent
climbing and that includes ladders, ropes, scaffolds, ramps, and
stairs. Frequent balanc[ing], stoop[ing], kneel[ing], crouch[ing],
and crawl[ing]. They would need to avoid concentrated exposures
to extremes in cold temperature as well as extremes in heat,
humidity, vibration, and workplace hazards, which I’m defining
as moving mechanical parts and unprotected heights. The
individual will be limited to simple routine tasks. No [fast-paced]
work, and . . . work would have to be without strict production
demands. Also, limited to frequent interaction with supervisors
and coworkers. Occasional interaction with the public. . . .
Could the hypothetical individual perform any other work—any
work in the workforce and, if so, could you give me a few
examples with numbers of jobs for each?
...
A.
Jobs that I could identify would include the job of a hotel
housekeeper. 323.687-014, light, unskilled, SVP 2, reasoning
level is 1. Approximately 219,000 existing jobs in the national
economy. The job of price marker. 209.587-034, light, unskilled,
SVP 2, reasoning level 2, approximately 124,000 existing jobs in
[the] national economy. The job of an office helper. 239.567-010,
light, unskilled, SVP 2, reasoning level 2, approximately 14,000
existing jobs in the national economy.
(Tr. 74-73.)
D.

Standard for Evaluating Evidence of Intellectual
Disability

20 C.F.R. Pt. 404, Subpt. I, § 12.05B governs listing level impairment
for mental disability. For an impairment to meet listing 12.05, it must
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satisfy both (1) the diagnostic description for intellectual disability as set
forth in the listing’s introductory paragraph and (2) one of four additional
sets of criteria (listed in subparagraphs (A) through (D)). See 20. C.F.R. pt.
404, subpt. P, app. 1 §§ 12.00, 12.05 (2017); see also 20 C.F.R. § 416.925.
Listing 12.05B requires (1) qualifying IQ scores (70 or below full scale score,
or 71-75 full scale score with accompanying verbal or performance scores of
70 or below); (2) significant deficits in adaptive functioning currently
manifested by one extreme limitation or two marked limitations in the
following areas of mental functioning: (a) understanding, remembering, or
applying information, (b) interacting with others, (c) concentrating,
persisting, or maintaining pace, or (d) adapting managing oneself; and (3)
evidence that the disorder began before age 22. 20 C.F.R § 416.925(a); 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.05B. The Social Security
Administration’s Program Operations Manual System (“POMS”) defines
“adaptive functioning” as an individual’s “progress in acquiring mental,
academic, social and personal skills as compared with other unimpaired
individuals of his/her same age.” POMS DI 24515.056.D.2.
E.

Analysis

The Court finds that the ALJ’s decision is based on correct legal
standards and is supported by substantial evidence in the record. First, the
ALJ’s conclusion that Plaintiff’s IQ scores were invalid was proper. The ALJ
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rejected the scores because they were outdated, with the most recent score
being from 1985 when Plaintiff was 12 years old. (Tr. 569-71, 1007-15.) In
doing so, the ALJ made no error of law, and Plaintiff’s reliance on Hodges,
276 F.3d 1265, as Defendant argues, is misplaced. (Doc. 17 at 15.) “The
[Hodges] presumption3 applies only for valid tests, and [Plaintiff] cannot rely
on the presumption because her [35-year-old] IQ test[s] [were] too remote in
time under the regulations.” Hoyett v. Colvin, No. 3:15-CV-344-GMB, 2016
WL 4942009, at *4 (M.D. Ala. Sept. 15, 2016). See also Lewis v. Astrue, No.
CIV.A. 08-0583-CB-M, 2009 WL 1904319, at *3 (S.D. Ala. July 1, 2009)
(finding that the ALJ’s decision not to rely on the plaintiff’s IQ test results
from twenty years earlier was proper.)
Moreover, Plaintiff’s statement that the ALJ’s decision invalidating
Plaintiff’s IQ scores was an “assumption that [Plaintiff] somehow improved
her intellectual abilities so that there were no problems in this area” is a
mischaracterization of the ALJ’s decision. (Doc. 17 at 16.) The ALJ did not
“assume” that Plaintiff somehow improved nor did he assume that she did
not have intellectual problems. Rather, the ALJ accounted for Plaintiff’s
intellectual limitations by adjusting her RFC accordingly. This is

The presumption is an acknowledgment that, “absent evidence of sudden
trauma,” a person's IQ remains fairly constant throughout life. Hodges, 276 F.3d at
1268.
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particularly evident by the ALJ incorporating greater limitations in
Plaintiff’s RFC than afforded by both state agency consultants. In his
decision, the ALJ explained:
The evidence provides support for finding of borderline
intellectual functioning along [with] depression[,] causing
moderate limitations to the claimant’s ability to function, which
is greater than found by both State agency reviewing consultants.
However, it is noted that the information provided in her function
reports documents her ability to function is not as limited as
alleged and shows she is [independent] with her daily activities
with most of the reported limitation attributed to pain.
(Tr. 35 (internal citations omitted).). Thus, the ALJ’s decision finding
Plaintiff’s IQ scores invalid was supported by substantial evidence.
As to Plaintiff’s second issue, the Court finds that the ALJ’s finding of
no significant deficits in Plaintiff’s adaptive functioning was supported by
substantial evidence. To meet the requirements of Listing 12.05B, Plaintiff
needed to establish manifestation of deficits in adaptive functioning prior to
the age of 22 and a valid verbal, performance, or full-scale IQ score of 71-75
or below. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05B. As discussed above,
Plaintiff’s IQ scores were invalid, and Plaintiff did not meet her burden in
establishing a manifestation of deficits in adaptive functioning. In making
this decision, the ALJ explained:
Moreover, the overwhelming majority of the records decline to
find deficits in adaptive function. In January 2014, the claimant
was noted to have average intelligence. There was no axis II
diagnosis provided. Overall, her mental health records make no
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findings or diagnosis related to the claimant’s intellect nor is
there any notation of concern for a significant deficit in cognitive
functioning. Finally, the claimant previously reported she liked
to cook[,] and she liked to read and do crossword puzzles.
(Tr. 33 (internal citations omitted).)
Even assuming arguendo that Plaintiff’s IQ scores were valid, giving
rise to a presumption that Plaintiff manifested deficits in adaptive
functioning prior to age 22, the Defendant rebutted that presumption by
presenting substantial evidence of Plaintiff’s daily activities and behavior.
Specifically, Plaintiff testified that she could not keep up with working as a
McDonald’s cook4 due to the fast pace and because co-workers had to read
things to her (Tr. 56, 63), but there is evidence showing that she stopped
working as a result of a job-related injury, which her employer was “supposed
to pay for[,] but did not.” (Tr. 449.) Additionally, Plaintiff emphasizes the
fact that she never lived alone, that her husband reminds her to take her
medication, and that she cannot drive because she allegedly could not
understand enough to pass the test. But Plaintiff’s co-dependency and
adaptive functioning are not so severely limiting, especially in light of record
evidence showing that she assists with caring for her mother-in-law (Tr.
1049), enjoys cooking (Tr. 649), and navigates public bus routes with the help

Plaintiff also testified that in addition to cooking, she worked as a cashier,
cleaned tables and bathrooms, and mopped floors while working at McDonald’s.
(Tr. 56-57.)
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of the bus driver (Tr. 67).
As to Plaintiff’s final issue, the Court finds the ALJ’s decision not to
order a current consultative IQ test was legally sound and, therefore, not
erroneous. It is well established that the ALJ has a basic duty to develop a
full and fair record. 20 C.F.R. § 416.912(d) (stating that “[b]efore we make a
determination that you are not disabled, we will develop your complete
medical history for at least the 12 months preceding the month in which you
file your application”). Nevertheless, the plaintiff bears the burden of proving
that she is disabled, and consequently, she is responsible for producing
evidence in support of her claim. Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003). “The [ALJ] has a duty to develop the record where
appropriate[,] but is not required to order a consultative examination as long
as the record contains sufficient evidence for the [ALJ] to make an informed
decision. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th
Cir. 2007).
Here, there was sufficient evidence to determine whether Plaintiff was
disabled, and additional evaluation by a medical expert was neither
necessary nor required. The ALJ considered the record as a whole, which
included opinions and records from Plaintiff’s treating physicians, Plaintiff’s
testimony, the VE’s testimony, and the opinions of two non-examining state
agency consultants. While it is undisputed that Plaintiff was enrolled in ESE
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classes, only completed an eighth-grade level of education, and has some
difficulty reading, there were no gaps in the record that frustrated this
Court’s review of the ALJ’s decision. (See Tr. 307 (listing State agency
reviewing psychologist’s note that Plaintiff has limited social interaction but
can pay attention, follow instructions, and get along with people); Tr. 585
(listing Peace River Center’s mental status exam note that Plaintiff’s
intelligence estimate was average); Tr. 521 (reporting that Plaintiff finds
writing down spoken instructions helpful); Tr. 56 (testifying that she can do
addition and subtraction); Tr. 607 (reporting that Plaintiff spends most of her
time watching television and doing crossword puzzles).)
Thus, although an ALJ is responsible for developing a full and fair
record, the burden is still on the Plaintiff to prove she is disabled. Even if
another medical expert had been employed to evaluate her potential
disability, “[Plaintiff] would not have qualified for SSI benefits based on her
failure to show deficits in her adaptive functioning.” Prunty v. Acting Com'r
of Soc. Sec. Admin., 635 F. App'x 757, 760 (11th Cir. 2015).
III.

Conclusion

The Court does not make independent factual determinations, reweigh
the evidence, or substitute its decision for that of the ALJ. Thus, the
question is not whether the Court would have arrived at the same decision on
de novo review; rather, the Court’s review is limited to determining whether
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the ALJ’s findings are based on correct legal standards and supported by
substantial evidence. Based on this standard of review, the ALJ’s decision
that Plaintiff was not disabled within the meaning of the Social Security Act
for the time period in question should be affirmed.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.
DONE AND ORDERED at Jacksonville, Florida, on September 14,
2022.

Copies to:
Counsel of Record

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