Gray v. Colvin
Filing
19
ORDER AND OPINION REVERSING the final decision of the Commissioner and REMANDING this case for further proceedings consistent with this order and opinion. Signed by Magistrate Judge Alan J. Baverman on 9/22/15. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STEVEN GRAY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.
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CIVIL ACTION FILE NO.
1:14-cv-01600-AJB
O R D E R A N D O P I N I O N1
Plaintiff Steven Gray (“Plaintiff”) brought this action pursuant to sections 205(g)
and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), to obtain
judicial review of the final decision of the Commissioner of the Social Security
Administration (“the Commissioner”) denying his application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”) under the Social
Security Act.2 For the reasons below, the undersigned REVERSES the final decision
1
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. (See Dkt. Entries dated 10/22/14 & 10/24/14). Therefore, this Order
constitutes a final Order of the Court.
2
Benefits.
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Title II of the Social Security Act provides for federal Disability Insurance
42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
of the Commissioner AND REMANDS the case to the Commissioner for further
proceedings consistent with this order and opinion.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on February 12, 2010, alleging
disability commencing on December 30, 2009. [Record (hereinafter “R”) 14, 129-42].
Plaintiff’s
applications
were
denied
initially
and
on
reconsideration.
[See R77-85, 90-95]. Plaintiff then requested a hearing before an Administrative Law
Judge (“ALJ”). [R98-104]. An evidentiary hearing was held on June 21, 2012.
[R28-76]. The ALJ issued a decision on September 12, 2012, denying Plaintiff’s
application on the ground that he had not been under a “disability” at any time through
the date of the decision. [R11-27]. Plaintiff sought review by the Appeals Council, and
42 U.S.C. § 1381, et seq., provides for Supplemental Security Income Benefits for the
disabled. Title XVI claims are not tied to the attainment of a particular period of
insurance disability. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982).
Otherwise, the relevant law and regulations governing the determination of disability
under a claim for DIB are nearly identical to those governing the determination under
a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). In general, the
legal standards to be applied are the same regardless of whether a claimant seeks DIB,
to establish a “period of disability,” or to recover SSI, although different statutes and
regulations apply to each type of claim. See 42 U.S.C. § 1383(c)(3) (establishing that
the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to claims for SSI).
Therefore, to the extent that the Court cites to SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claims, and vice versa.
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the Appeals Council denied Plaintiff’s request for review on March 28, 2014, making
the ALJ’s decision the final decision of the Commissioner. [R2-8].
Plaintiff then initiated his lawsuit in this Court on May 27, 2014, seeking review
of the Commissioner’s decision. [See Doc. 1]. The answer and transcript were filed
on September 17, 2014. [See Docs. 6, 7]. On October 22, 2014, Plaintiff filed a brief
in support of his petition for review of the Commissioner’s decision, [Doc. 10]; on
November 26, 2014, the Commissioner filed a response in support of the decision,
[Doc. 13]3; and on December 10, 2014, Plaintiff filed his reply brief in support of his
petition for review, [Doc. 14]. The Court heard oral arguments on August 25, 2015.
[See Doc. 18]. The matter is now before the Court upon the administrative record, the
parties’ pleadings, the parties’ briefs, and the parties’ oral arguments, and it is
accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
3
Pursuant to a consent order entered on November 21, 2014, [Doc. 12], the
Commissioner’s response brief was timely filed.
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II.
STATEMENT OF FACTS4
A.
Background
Plaintiff was forty-two years old on September 12, 2012, the date of the ALJ’s
decision. [R23, 164]. He has a General Educational Development (“GED”) credential,
[R169], and past relevant work as a commercial cleaner, rental car driver, and lot
attendant, [R73]. Plaintiff alleges that he has been unable to perform substantial gainful
activity since December 30, 2009, due to large calluses on his right foot, whiplash,
mental illness, and mental retardation. [R16, 168].
B.
Lay Testimony
1.
Plaintiff
Plaintiff stated that he suffers from calluses on the bottom of his right foot and
that the calluses limit his ability to be on his feet, so that he can stand and walk only
about four or five hours at the most. [R50]. He reported that the pain had become
worse over time. [R53].
Plaintiff testified that he had been living in an apartment by himself since about
2008. [R53]. He said that he followed sports on and off and could read a newspaper
4
In general, the records referenced in this section are those deemed by the
parties to be relevant to this appeal. [See Docs. 10, 13, 14].
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well enough to understand what happened during a game. [R53-55]. He also stated
that he would visit the library, where he checked out movies and looked at the
newspaper and National Geographic. [R56-57].
Plaintiff explained that in his job driving rental cars from one location to another,
he did not use maps or written instructions, but instead had to follow another driver the
first time he went to a new location. [R46-47].
2.
Plaintiff’s Mother
Plaintiff’s mother testified that Plaintiff had learning disabilities but that she was
not sure whether he had been in “Special Ed.” [R60]. She stated that Plaintiff was able
to read and understand simple things in the newspaper. [R64]. She also indicated that
Plaintiff had trouble working because he would socialize or would take teasing
seriously and feel picked on and also because he had multiple calluses on his foot.
[R63, 66]. She testified that he needed help determining what is important (such as
attending the hearing before the ALJ) and would remember things if he wrote them
down. [R66]. She stated that he had trouble with comprehension and that although he
could follow simple instructions, “you will have to constantly check back with him.”
[R67].
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Plaintiff’s mother reported that Plaintiff lived with her continuously until 2004,
when she got married. [R59]. She reported that at first, he had lived in rooming houses
but that she had since found him an apartment, which is less expensive and allows less
opportunity for people to take advantage of Plaintiff. [R59, 61]. She stated that he
lives by himself but that she goes by and checks on him about three days a week to
make sure he is wearing proper clothing, keeping his apartment clean, and following
treatment prescribed for his foot. [R59, 66-67]. She indicated that she pays his rent
and utilities because Plaintiff does not fully understand the importance of paying them.
[R59, 61].
She indicated that others would take advantage of Plaintiff by taking his food and
underpaying him for work. [R61-62]. She also reported that Plaintiff had been tricked
into paying $2,000 he had received in a personal-injury settlement for a car that had
been totaled and could not be registered or driven. [R63-64]. Instead, he rides the bus
to work or will be picked up. [R68]. She stated that although Plaintiff does work, she
did not think that he ever made enough money to do things like pay rent or other bills.
[R69].
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C.
Administrative Records
In an undated work history report, Plaintiff stated that from 2000 through 2005,
he worked in a warehouse, six hours per day, three days per week, earning $7.00 per
hour; from 2005 through 2006, he worked through a temporary employment agency as
a driver, six hours per day, three days per week, earning $7.00 per hour; and from 2009
through the date of the report, he worked as a driver for an automotive dealer, five
hours per day, two days per week, earning $20.00 per day. [R177-78, 180, 182, 20609]. Earnings records show that Plaintiff earned at least $550 per year from 1987 to
2008, meeting the standard for “substantial gainful activity” in 1993 ($6,698.53), 1995
($8,954.65), and 1998 ($6,920.70), but earning less than $4,000 in fourteen of the other
years. [R161].
In an adult function report dated March 24, 2010, Plaintiff reported that he lived
on his own in an apartment and that on a typical day, he gets up in the morning, takes
a shower, takes a lunch to work, works with others on the job, comes home, eats dinner,
and plans for the next day. [R194]. He stated that he has no problem with his personal
care but needs reminders to take care of personal needs and grooming and to take
medicine. [R195-96]. He reported that he cleans and makes household repairs without
help or encouragement. [R196]. He also indicated that he does not drive because he
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does not have a car and that he instead takes public transportation. [R197]. He
reported that he can count change but cannot pay bills, handle a savings account, or use
a checkbook because he does not have a job. [R197]. He stated that he likes to read
and does so on a daily basis. [R198]. He also reported spending time with others at
work and at church and indicated that he gets along with others very well. [R198-99].
D.
School Records
A school report dated December 12, 1979, when Plaintiff was nine years old and
in the fourth grade, indicates that at that time, Plaintiff’s reading level was at grade 1.9,
his spelling level was at grade 3.4, and his math level was at grade 1.8. [R286]. It was
noted that Plaintiff had received “Title I” reading and math services and that the school
had also tried small groups and sending Plaintiff’s parents extra materials so that they
could help Plaintiff develop necessary skills. [R286].
On February 25, 1980, Mary V. Colburn, Resource Psychologist, evaluated
Plaintiff for “apparent learning problems.” [R285]. IQ testing revealed a verbal IQ
of 77, a performance IQ of 93, and a full-scale IQ of 84, with reading at the 3.6 grade
level and arithmetic at the 3.9 grade level. [R285]. The report states that Plaintiff had
difficulty with language comprehension and auditory memory. [R285]. Plaintiff
showed “fairly good problem-solving skills with some performance materials but not
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others,” “[d]id best when he merely had to copy,” and performed worst when he had
to organize information independently. [R285]. It was noted that Plaintiff had
relatively strong visual-motor perceptual skills, good fine-motor control, and clear
speech articulation but that his thinking was “extremely concrete, with almost no ability
to relate one isolated thing or event with another in order to form an overall concept
which would help him understand and organize” and that this inability to understand
affected his emotional maturity and made it difficult for him to remember things he was
told. [R285]. It was recommended that Plaintiff undergo further evaluation for
memory, comprehension, written expression, reading, and math, in order to determine
the appropriateness of placement in learning-disabled classes. [R285].
Minutes from an in-school meeting taking place on April 2, 1980, indicate that
Plaintiff was performing below expectations in the classroom. [R262]. It was
recommended that Plaintiff receive learning-disability resources, and an individualized
education plan (“IEP”) was to be completed in two weeks. [R262].
A report entitled Review of Evaluation Data, dated April 14, 1980, indicates that
Plaintiff had moderate learning disabilities and his performance was considered “below
average,” but he was not considered to be mentally retarded. [R275]. It was noted that
there was a severe discrepancy between Plaintiff’s intellectual ability and his
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achievement in the areas of oral and written expression, basic reading, math reasoning,
and reading comprehension. [R277].
Minutes from a school meeting held on January 18, 1983, indicate that Plaintiff’s
teachers were of the opinion that he was functioning below grade level (six) on
comprehension and skills. [R279]. It was also noted that Plaintiff was having some
difficulty with spelling but that his teacher felt he could do better if he studied. [R279].
One teacher said that she felt Plaintiff could do seventh grade work, but that he did not
because he did not complete work, and he was therefore functioning at a fifth-grade
level. [R279]. Two of his teachers stated that Plaintiff needed to be pushed constantly
to perform and that he could use all the help he could get. [R279]. The teachers
recommended that Plaintiff continue to participate in the school’s program for learningdisabled students. [R281]. Plaintiff’s mother stated, however, that she saw no
improvement and wanted Plaintiff out of the resource class. [R279]. Plaintiff was then
removed from the learning-disabled program over his teachers’ objections. [R281].
In the spring of 1987, when Plaintiff was in the eleventh grade, he failed to pass
the reading portion of the Georgia Basic Skills Test. [R348]. In October 1988, when
he was in the twelfth grade, he again failed to pass the reading portion of the test.
[R348]. In June 1989, Plaintiff had a grade point average of 0.906, was in the bottom
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one percent of his class (288 of 291), and had only 277.5 of the 315 credits he needed
to graduate. [R347].
A letter from the school district’s record center, dated April 19, 2011, indicates
that Plaintiff was not enrolled in a “Special Education program” and that his file
therefore did not contain an IEP or Psychological Report. [R344]. Records also
indicate that he was promoted each year. [R271].
E.
Medical Records
From March through May 2009, Plaintiff received therapy from Wendy Mitchell,
M.D., for injuries to his shoulder, neck, and low back that he sustained in a car
accident. [R352-404]. By May 2009, he reported that he was no longer in pain and
was not taking pain medication, and he was released to resume his normal activities.
[R352].
On November 20, 2009, Camp Creek Urgent Care treated Plaintiff for an injury
to his right thumb. [R293-95].
On December 30, 2009, Plaintiff was evaluated by Carolyn N. Johnson, Ph.D.,
a licensed clinical psychologist, upon his mother’s request. [R296]. The stated purpose
of the evaluation was to assess Plaintiff’s current level of functioning and to provide
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information regarding potential interventions, including his eligibility for various
community-based services. [R296].
During the evaluation, Plaintiff reported that in high school, math was his worst
subject, and he struggled with science. [R297]. He denied having behavioral problems
in school and stated that although he did attend summer school, he was never retained
in any grade. [R297]. He also denied ever being placed in special education. [R297].
He indicated that he had been the subject of a rather hostile school environment in the
twelfth grade, resulting in his leaving school and earning a GED. [R297]. Although
he acknowledged a possession charge that took place “a couple months ago,” he stated
that he used marijuana occasionally since high school but never developed a regular
pattern and had not used in the couple of months prior to the evaluation. [R297].
Plaintiff’s mother expressed concern that Plaintiff has a difficult time realizing
what is important and that he often tries to handle things himself without asking for
help, which sometimes results in others taking advantage of him. [R298-99]. She
provided the example of the car Plaintiff purchased, explaining that it was an exercise
of poor judgment because Plaintiff did not receive the title and could not afford
insurance. [R299]. She reported that Plaintiff seems to become confused easily,
mixing aspects of different situations and not being able to stay focused on one thing.
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[R299]. She also stated that Plaintiff could not manage his money, he could not budget
for bills, and although Plaintiff was living on his own, she and her husband were paying
for Plaintiff’s apartment. [R299]. She described that Plaintiff does not seem to have
motivation to work, explaining that he does not prioritize getting a job and does not
seem to realize that he needs to have one in order to pay his rent. [R299]. She also
questioned whether Plaintiff has the social skills to maintain a job, as he tends to
become paranoid and feels as if people are out to get him, tends to take things too
seriously and personally, and often takes things the wrong way. [R299].
Administration of the Wechsler Adult Intelligence Scale–Fourth Edition
(“WAIS-IV”) revealed a full-scale IQ score of 69, which was within the Extremely
Low range of intellectual functioning and placed Plaintiff at the second percentile when
compared to scores earned by others his age. [R299-300]. Plaintiff’s scores on the
Verbal Comprehension and Working Memory subscales fell in the Extremely Low
range, his score on the Perceptual Reasoning scale fell in the Borderline range, and his
Processing Speed subscale fell in the Low Average range. [R300]. Dr. Johnson opined
that, overall, Plaintiff’s intellectual functioning displayed “significantly below average
levels of functioning in most areas.” [R300].
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Administration of the Wechsler Individual Achievement Test–Second Edition
(Abbreviated) resulted in reading and spelling scores in the Extremely Low range and
an arithmetic score in the Low Average range.5 [R300]. Dr. Johnson stated that
Plaintiff appeared to have “passable skills with respect to mathematics and can perform
simple calculations, though higher skills such as budgeting and financial planning may
be beyond his capabilities.” [R300]. She also noted that Plaintiff’s verbal skills were
“quite low, which may make things more difficult in terms of maintaining
communication in social and professional settings.” [R300].
Dr. Johnson also interviewed Plaintiff’s mother and stepfather with the VinelandII Adaptive Behavior Scales in order to provide a measure of Plaintiff’s adaptive
functioning. [R301]. Dr. Johnson opined that the results indicated that Plaintiff had
“significant adaptive deficits”; was functioning in the Low range with regard to
communication, daily living skills, and socialization; and had minimal ability to
maintain social relationships with awareness as opposed to naivete. [R301]. She noted
that Plaintiff’s area of strength was in daily living skills, such as managing his own
residence, attending to his personal needs, and moving with relative independence in
5
Plaintiff’s Word Reading was judged to be at the 4:7 grade equivalent,
Numerical Operations at the 6:8 grade equivalent, and Spelling at 4:2 grade equivalent.
[R300].
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the community. [R301]. She estimated that Plaintiff was below the first percentile with
respect to overall development of adaptive skills as compared to others his age,
evidencing limitations consistent with a diagnosis of Mild Mental Retardation. [R301].
Dr. Johnson diagnosed Mild Mental Retardation; indicated that financial issues,
erratic employment, community living skills, and access to health care and community
services could affect Plaintiff’s diagnosis, treatment, and prognosis; and assigned a
GAF score of 45.6 [R302-03]. She also recommended that Plaintiff receive some type
of community support, as she found him able to attend to his basic needs but unable to
support himself, maintain a job, or be financially independent from his mother, and
vulnerable to poor judgment and the influence of others who may not have his best
interests in mind. [R303]. She suggested that he be evaluated for a work-training
program and consider applying for Social Security disability benefits. [R303].
In 2010, Plaintiff presented to John Ross, M.D., with calluses or calcifications
and pin-prick pain sensations in his right foot. [R406-09]. Treatment consisted of
6
The Global Assessment of Functioning (“GAF”) is a numeric scale
(0 through 100) that considers psychological, social, and occupational functioning on
a hypothetical continuum of mental health illness. Diagnostic and Statistical Manual
of Mental Disorders 32-34 (4th ed., Text Revision, 2000). A GAF score between
41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job).” Id. at 34.
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salicylic acid and Lotrisone cream to dry and then remove the calluses. [R406-09].
Plaintiff was diagnosed with tinea pedis7 and calculi8 and was told to wear flip flops.
[R407].
On June 5, 2010, reviewing physician Douglas Robbins, Ph.D., completed a
Psychiatric Review Technique (“PRT”) form and a Mental Residual Functional
Capacity Assessment (“Mental RFC Assessment”).
[R304-18].
In the PRT,
Dr. Robbins opined that Plaintiff had moderate restrictions in activities of daily living,
moderate difficulties in maintaining social functioning, and moderate difficulties in
maintaining concentration, persistence, or pace. [R312].
In the Mental RFC Assessment, Dr. Robbins opined that Plaintiff was moderately
limited in his ability to: understand, remember, and carry out detailed instructions;
maintain attention and concentration for extended periods; sustain an ordinary routine
without special supervision; interact appropriately with the general public; accept
instructions and respond appropriately to criticism from supervisors; respond
7
Tinea pedis is also commonly known as Athlete’s Foot. MedlinePlus,
Athlete’s Foot, http://www.nlm.nih.gov/medlineplus/athletesfoot.html (last visited
8/6/15).
8
A calculus is an aggregation or formation of solid material, usually
composed of salts of organic or inorganic acids. PDR Med. Dictionary 260
(1st ed. 1995).
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appropriately to changes in the work setting; and set realistic goals or make plans
independently of others. [R316-17]. Dr. Robbins concluded that Plaintiff is able to
understand, remember, and follow simple one-to-two-step procedures; is able to
maintain attention/concentration for two-hour periods to complete simple tasks with
minimal supervision; would be able to work an eight-hour day with “all regularly
afforded breaks [and] rest periods”; and would be able to maintain schedules and
attendance. [R318]. He also opined that Plaintiff’s interactions with the general public
should be limited, supervision and criticism should be of a supportive nature, and
changes in the work setting should be infrequent and introduced gradually, and that
while Plaintiff is capable of setting simple, short-term work goals, he will need
assistance with goals that are more complex, detailed, or long term. [R318].
On December 22, 2010, Plaintiff underwent a consultative evaluation with
Valerie McAdams, Psy. D. [R322]. Dr. McAdams conducted a clinical interview and
mental-status examination; reviewed Plaintiff’s Adult Disability Report and
Dr. Johnson’s report; acknowledged that Plaintiff alleged that he was impaired by large
calluses on his right foot, mental illness, and mental retardation; and interviewed
Plaintiff’s mother. [R322-23]. Plaintiff was interviewed separately from his mother,
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according to his preference, and he was also administered the Mini Mental-State
Examination (“MMSE”).9 [R323-24].
Plaintiff reported he had held a variety of jobs and never been fired, and he was
currently employed part-time as a driver. [R322]. He reported he resided alone in an
apartment since 2007; he required no assistance with meal preparation, household tasks,
shopping, or managing funds; and he participated in a wide range of activities,
including exercising, watching television, spending time with friends, going to movies,
and working. [R323].
Plaintiff’s mother reported to Dr. McAdams that Plaintiff is “slow” but did not
receive special education or repeat any grades. [R322]. She also indicated that Plaintiff
believes that other workers take advantage of him by doing things like paying him only
$10 for eight hours of work. [R322-23]. She also reported that she helps to manage
Plaintiff’s finances, which include $300 in monthly income. [R323].
Dr. McAdams observed that Plaintiff did not appear to overstate his symptoms
and that “there was no real clear reason why he has applied for disability assistance.”
9
The MMSE is the most common neurocognitive test. It considers a
person’s appearance, orientation, attention span, recent and past memory, language
function, and judgment, and is scored from 0 to 30. MedlinePlus, Mental Status
Testing, http://www.nlm.nih.gov/medlineplus/ency/article/003326.htm (last visited
8/5/15). Plaintiff obtained a score of 28. [R324].
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[R323]. She also remarked that Plaintiff had no history of mental-health treatment and
that he failed to mention a possession-of-marijuana charge reported in Dr. Johnson’s
December 2009 opinion. [R323].
Upon mental status examination, Dr. McAdams found that Plaintiff’s insight into
his functioning and judgment appeared to be fair, that his reasoning skills appeared to
be logical, and that he had no problems with sustained attention or concentration.
[R323]. She also noted that Plaintiff was alert and oriented to person, time, place, and
situation, and had no difficulty recalling three words after a brief period of time or
spelling the word “world” backwards. [R324].
Dr. McAdams opined that Plaintiff’s actual presentation, work history, and
educational experience appeared to suggest higher functioning than noted on formal
testing in the previous examination and that, given Plaintiff’s speech and presentation,
his intellectual functioning appeared to be in the borderline range. [R323-24]. She
further stated that although Plaintiff may be a slow learner, “given his ability to
maintain employment over the years, live alone, and manage [activities of daily living]
fairly well, mental retardation is not suspected.” [R324]. She opined that Plaintiff is
able to understand, remember, and follow simple instructions; has no obvious deficits
with memory functioning; does not appear to be easily overwhelmed by minor
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stressors; and does not appear to be prone to interpersonal issues in the workplace.
[R324]. Dr. McAdams did find, however, that Plaintiff “may require assistance
managing disability funds, if awarded.” [R324].
On February 9, 2011, reviewing physician Horace Lukens, Ph.D., completed a
PRT and Mental RFC Assessment. [R325-41]. In the PRT, Dr. Lukens opined that
Plaintiff had moderate restrictions in activities of daily living, mild difficulties in
maintaining social functioning, and moderate difficulties in maintaining concentration,
persistence, or pace. [R335].
In the Mental RFC Assessment, Dr. Lukens, like Dr. Robbins, opined that
Plaintiff was moderately limited in his ability to: understand, remember, and carry out
detailed instructions; maintain attention and concentration for extended periods; sustain
an ordinary routine without special supervision; interact appropriately with the general
public; respond appropriately to changes in the work setting; and set realistic goals or
make plans independently of others. [R339-40]. Unlike Dr. Robbins, Dr. Lukens
found that Plaintiff was not significantly limited in his ability to accept instructions and
respond appropriately to criticism from supervisors but that he was moderately limited
in his ability to: perform activities within a schedule, maintain regular attendance, and
be punctual within customary tolerances; make simple work-related decisions; complete
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a normal workday and workweek without interruptions from psychologically based
symptoms; and perform at a consistent pace without an unreasonable number and
length of rest periods.
[R339-40].
Dr. Lukens concluded that Plaintiff could
understand and remember simple instructions, maintain attention and concentration,
and perform routine, repetitive tasks for two-hour blocks during an eight-hour day; was
capable of interacting appropriately with coworkers and supervisors at a basic level;
and was able to adapt adequately in order to complete simple work tasks without
significant interruption from psychologically based symptoms. [R341].
F.
Vocational Expert Testimony
The vocational expert (“VE”) testified that a person of Plaintiff’s age, education,
and vocational profile, who was capable of light work with a sit-stand option and was
limited to simple tasks (defined as working at skill-levels one or two), no reading, and
occasional superficial contact with the general public and co-workers, could not
perform Plaintiff’s past work but could perform the light unskilled jobs of garment
sorter, press operator, or assembler II. [R72-74].
III.
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact and conclusions of law:
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1.
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2011.
2.
The claimant has not engaged in substantial gainful activity since
December 30, 2009, the alleged onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).
3.
The claimant has the following severe impairments: borderline
intellectual functioning, and a history of marijuana abuse
(20 CFR 404.1520(c) and 416.920(c)).
...
4.
The claimant 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
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
...
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant must be afforded a sit/stand option,
and is limited to jobs with no reading requirement. The claimant
retains the residual functional mental capacity to perform simple
tasks (work at skill levels 1-2), and occasional superficial contact
with the general public and coworkers.
...
6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
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...
7.
The claimant was born on August 2, 1970 and was 39 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills
(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
...
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from December 30, 2009, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).
[R16-22].
The ALJ explained that he had considered Plaintiff’s mental impairment under
the requirements of Listing 12.05 (Mental Retardation),10 which, the ALJ noted, “refers
10
On August 1, 2013, while Plaintiff’s appeal of the ALJ’s decision was
before the Appeals Council, the Social Security Administration amended Listing 12.05
to replace the words “mental retardation” with “intellectual disability” because of the
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to significantly subaverage general intellectual functioning with deficits in adaptive
functioning” where “the evidence demonstrates or supports onset of the impairment
before age 22,” but found that Plaintiff’s condition did not meet or medically equal the
listing because: Plaintiff did not appear to have deficits in functional adaptations, as
he has lived alone since 2008, can read the newspaper to follow sports, goes to the
library to check out DVDs and to look at National Geographic, and “has earned
significant sums at jobs in every year from 1987 to 2008” and at substantial gainful
activity level or above in several years; educational records from before the age of
twenty-two indicate that Plaintiff was considered learning disabled, not mentally
retarded, was considered by teachers to be working below his potential in mainstream
classes (e.g., World History II, basic algebra, consumer math, biology, math level 3,
development of U.S. democracy, matter and measurement, political behavior), was not
in special education classes, was seen as functioning in the low-average range of
intelligence while in school, and achieved a GED after leaving school, [R261-86]; and
negative connotations associated with the term “mental retardation.”
See 78 Fed. Reg. 46,499, 46,501. The change “does not affect the actual medical
definition of the disorder or available programs or services.” Id. at 46,500. While the
undersigned is certainly sympathetic to the concerns underlying the amendment, this
R&R uses the term “mental retardation” in order to avoid inconsistency with the
terminology used in the medical records, by Plaintiff, and by the ALJ.
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while the psychological evaluation from December 30, 2009, found mild mental
retardation, the considerations noted above, along with the extensive list of daily
activities Plaintiff reported at that examination, indicates that Plaintiff is performing
more in line with the psychological consultative examination held December 22, 2010,
which found intellectual functioning to be within the borderline range, with mental
retardation not suspected given Plaintiff’s functional abilities, [R296-303, 321-24].
[R17].
The ALJ further explained that even if the above issues had been resolved in
Plaintiff’s favor, the required level of severity for the disorder was not met because the
requirements in paragraphs A, B, C, or D were not satisfied. [R17]. As to paragraph C,
the determination Plaintiff challenges here, the ALJ found that the requirements of that
paragraph were not met because although Plaintiff has a valid verbal, performance, or
full-scale IQ of 60 through 70, he does not have a physical or other mental impairment
imposing an additional and significant work-related limitation of function.
The ALJ also explained why he did not fully credit Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of his symptoms. [R18-22].
First, the ALJ found that Plaintiff’s testimony as to a very limited lifestyle with little
physical exertion and limited mental capacity was not in keeping with the findings
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reported in his school records and by his treating physicians: Plaintiff’s lowest IQ
testing before age twenty-two was a verbal IQ score of 77, in the borderline range;
Dr. McAdams reported that Plaintiff’s activities of daily living and presentation were
in the borderline range; Plaintiff’s academic records indicate that he was learning
disabled but not considered mentally retarded, that he was considered by teachers to be
working below his potential in mainstream classes, that he was not enrolled in special
education classes, and that he earned a GED after leaving school, [R261-86]. [R20].
Second, the ALJ found that Plaintiff’s mother was partially credible as to his having
poor money management skills, needing her help and occasional funding, and being
cheated by others, but that Plaintiff’s own reports of his activities of daily living make
his functioning appear to be above the mental-retardation range: he has lived alone
since 2008, can read the newspaper to follow basketball, goes to the library to check out
DVDs and look at National Geographic, and has been able to earn wages at various jobs
every year.
[R20-21].
Third, the ALJ stated that while he accepted that the
psychological evaluation included a valid full-scale IQ score in the mental-retardation
range, he gave more weight to the medical opinion and assessment of Dr. McAdams
than to other testing and, as discussed above, did not find the mental-retardation listing
to be met. [R21]. Fourth, the ALJ stated that he gave “significant weight” to opinions
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of Drs. Lukens and Robbins because he found them to be “fully supported by the
record.” [R21]. Fifth, the ALJ found that there were “no real physical ailments” and
that past substance abuse was not material, as Plaintiff had been able to work despite
any such abuse. [R21].
IV.
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if 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 result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.”
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The impairment or
impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
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the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404
(Listing of Impairments), the claimant will be considered disabled without
consideration
of
age,
education,
and
work
experience.
See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At step four, if the claimant
is unable to prove the existence of a listed impairment, he must prove that his
impairment
prevents
performance
of
past
relevant
work.
See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the regulations
direct the Commissioner to consider the claimant’s residual functional capacity, age,
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education, and past work experience to determine whether the claimant can perform
other work besides past relevant work.
See 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). The Commissioner must produce evidence that there is other work
available in the national economy that the claimant has the capacity to perform.
Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant must prove an
inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the
sequential
evaluation
ceases
and
further
inquiry
ends.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy.
Doughty,
245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superceded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
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V.
SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
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a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.
Barron v. Sullivan,
924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
VI.
CLAIMS OF ERROR
Plaintiff alleges that the ALJ erred by failing to include limitations in the RFC
to accommodate his slow learning ability or need for additional supervision and by
making conflicting and erroneous findings that led to an unfounded conclusion that
Listing 12.05C was not met. [Doc. 10 at 10-24]. The Court addresses each allegation
below.
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A.
Limitations to the RFC
The RFC finding limits Plaintiff to non-reading jobs that require only occasional
superficial contact with the general public and coworkers and require him to perform
only simple tasks, defined as work at skill levels one and two. [R18]. Plaintiff argues
that the RFC is deficient because it does not include any limitation regarding his slow
learning ability or need for additional supervision. [Doc. 10 at 10-12].
1.
“Slow Learner”
Plaintiff argues that Dr. McAdams found that Plaintiff is a slow learner, and he
contends that he therefore requires special attention to learn each new work task.
[Doc. 10 at 11 [citing R324]]. He asserts that because the ALJ gave great weight to
Dr. McAdams’s opinion, the ALJ should have crafted the RFC to accommodate the
limitation. [Doc. 10 at 11].
The contention that the ALJ did not address or include appropriate limitations
consistent with Dr. McAdams’s report is without merit. As the Commissioner points
out, Dr. McAdams did not herself make a finding that Plaintiff was a “slow learner,”
but instead used the phrase in the context of acknowledging Plaintiff’s mother’s report
that he was “slow.” [Doc. 13 at 7-8 [citing R322-24 (“He may[]be a slow learner,
but . . . .”)]]. Additionally, as noted by the ALJ, Dr. McAdams observed that Plaintiff’s
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reasoning skills appeared logical, he was well oriented and had no obvious deficits with
memory functioning, and his insight into functioning and judgment seemed fair, and
she opined that Plaintiff had no problems with sustained attention or concentration and
that he was able to understand, remember, and follow simple instructions. [R20 [citing
R322-24]]. Thus, the Court finds no basis for a determination that the RFC does not
accommodate the limitations found by Dr. McAdams.
2.
Special Supervision
Plaintiff points out that both of the reviewing physicians found that he is
moderately limited in his ability to sustain an ordinary routine without special
supervision, [R316-18, 339-41], and he argues that his work history—particularly his
history of needing to follow another driver the first time he drove to a new location
because he did not use maps or written instruction, [R46-47]—supports this need for
additional or special supervision. [Doc. 10 at 11]. He contends that because the ALJ
gave significant weight to the reviewing opinions, the RFC should include a limitation
reflecting Plaintiff’s need for special supervision. [Id. at 11-12].
The Commissioner, in response, concedes that both reviewing physicians
checked boxes on the Mental RFC Assessment form indicating that Plaintiff was
moderately limited in his ability to sustain an ordinary routine without special
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supervision. [Doc. 13 at 9 [citing R316, 339]]. The Commissioner points out,
however, that Dr. Robbins opined in his functional capacity assessment that Plaintiff
was able to maintain attention and concentration for two-hour periods to complete
simple tasks with minimal supervision, [R318], and that Dr. Lukens did not elaborate
on any limitations regarding Plaintiff’s supervision in his functional capacity
assessment but did opine that Plaintiff could understand and remember simple
instructions, maintain attention and concentration, and perform routine tasks for
two-hour blocks in an eight-hour day, [R341]. [Doc. 13 at 9]. The Commissioner
contends that the RFC is therefore consistent with the opinions of the reviewing
physicians. [Id. at 10].
To the extent that Plaintiff’s argument regarding additional limitations for special
supervision rests on Plaintiff’s alleged inability to receive written instructions, the
Court finds that such limitation was implicitly captured in the restriction to jobs with
no reading requirements. [See R18]. It does, however, appear that although the ALJ
stated that he gave “significant” weight to the opinions of the reviewing physicians, he
failed to reconcile the RFC to the portions of the opinions in which the reviewing
physicians found that Plaintiff is moderately limited in his ability to sustain an ordinary
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routine without special supervision. [Compare R18 (RFC) with R316, 339 (reviewers’
opinions)].
First, the Court is not persuaded by the Commissioner’s suggestion that the
comments in the functional capacity assessment so minimize the “special supervision”
opinions that the ALJ need not have addressed them. It is uncontroverted that both
reviewing physicians found that Plaintiff was moderately limited in his ability to
sustain an ordinary routine without special supervision. [R316, 339]. That Plaintiff
may have an ability to manage simple tasks with minimal supervision for two-hour
blocks says nothing about his ability to sustain such work with only minimal
supervision over the course of a eight-hour work day or a forty-hour work week.
[See R317, 341].
Second, to presume that the comments the reviewing physicians wrote in their
functional capacity assessments were intended to address Plaintiff’s moderate limitation
in his ability to sustain an ordinary routine without special supervision would amount
to an impermissible post hoc rationalization. Dr. Lukens’s comments make no further
reference to Plaintiff’s need for supervision, [R341], and while Dr. Robbins’s
comments do refer to Plaintiff’s need for supervision, a “moderate” limitation is
contrary to a need for “minimal” supervision, and neither Dr. Robbins nor the ALJ
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acknowledged the conflict or made any attempt to resolve it, [R318]. It would be
improper for the Court—or the Commissioner—to draw post hoc conclusions from the
medical evidence. See Baker v. Comm’r of Soc. Sec., 384 Fed. Appx. 893, 896
(11th Cir. June 23, 2010) (“If an action is to be upheld it must be upheld on the . . . bases
articulated in the agency’s order.”) (citing FPC v. Texaco, Inc., 417 U.S. 380, 397
(1974)); Patterson v. Chater, 983 F. Supp. 1410, 1413 (M.D. Fla. 1997) (holding that
it is the duty of the ALJ—and not the court—to draw inferences from the evidence and
resolve conflicts in the evidence); see also Hendrix ex rel. S.F.H. v. Astrue, No. 1:12cv-2086, 2013 WL 4718223, at *16 (N.D. Ga. Sept. 3, 2013) (Duffey, J., adopting
Scofield, M.J.) (“An ALJ may not arbitrarily pick and choose facts from the evidence
to support his conclusions without articulating specific, well supported reasons for
crediting some evidence while discrediting other evidence.”) (citing Marbury v.
Sullivan, 957 F.2d 837, 839-41 (11th Cir. 1992) (per curiam)).
Thus, because the reviewing physicians found that Plaintiff was moderately
limited in his ability to sustain an ordinary routine without special supervision, and the
ALJ failed to explain why those opinions were not accommodated in the RFC despite
the “significant weight” he claimed to have accorded them, remand is required.
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B.
Listing 12.05C
Plaintiff also takes issue with the ALJ’s determination that he did not meet
Listing 12.05C. [Doc. 10 at 12-24]. The Listing of Impairments in Appendix 1 of
Subpart P describes for each of the major body systems impairments that are considered
to be severe enough to render an individual disabled. 20 C.F.R. § 404.1525(a). As
noted above, at the third step of the five-step disability evaluation process, the ALJ
must determine whether a claimant’s impairments meet or equal one of the Listings and
meet the duration requirement.11 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant meets
or equals a Listing, then he is disabled. Id.
A claimant meets a Listing if he has a diagnosis included in the Listings and
provides medical reports documenting that his conditions meet the specific criteria in
the Listings. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam)
(citing 20 C.F.R. § 404.1525(a)-(d)). A claimant equals a Listing if the medical
findings show an impairment at least equal in severity and duration to the criteria set
out in the Listing. Wilson, 284 F.3d at 1224. Where a claimant alleges that he has an
impairment that meets or equals a Listing, he bears the burden of presenting evidence
11
An impairment “must have lasted or must be expected to last for a
continuous period of at least 12 months” to meet the duration requirement.
See 20 C.F.R. § 404.1509.
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showing how his impairment meets or equals the Listing. Wilbon v. Comm’r of Soc.
Sec., 181 Fed. Appx. 826, 828 (11th Cir. May 18, 2006) (per curiam) (citing Wilkinson
v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (per curiam)).
Listing 12.05 (Mental Retardation) refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period—that is, the evidence demonstrates or supports onset of the
impairment before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. The required
level of severity for subsection C is met when the claimant has “[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.”
Id. Thus, a claimant meets Listing 12.05C if he shows: (1) significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested
before age 22 (“adaptive-deficit requirement”); (2) a valid IQ score between 60 and 70
(“IQ-score requirement”); and (3) other physical or mental impairments that impose
significant work-related limitations (“other-impairment requirement”). See 20 C.F.R.
Pt. 404, Subpt. P, App. 1 §§ 12.00A, 12.05C; Gibson v. Astrue, No. 1:09-cv-677-AJB,
2010 WL 3655857, at *9 (N.D. Ga. Sept. 3, 2010) (Baverman, M.J.); see also Pettus
v. Astrue, 226 Fed. Appx. 946, 948 (11th Cir. Apr. 5, 2007) (per curiam) (citing Crayton
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v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)). “[A] valid IQ score need not be
conclusive of mental retardation where 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); accord Outlaw v. Barnhart, 197 Fed. Appx. 825,
827 (11th Cir. Aug. 10, 2006).
Although not expressly stated, the parties appear to agree that Plaintiff satisfies
the IQ-score requirement because Plaintiff has a valid full-scale IQ score of 69.
[Doc. 10 at 13 [citing R21, 299]; Doc. 13 at 13]. Plaintiff contends, however, that the
ALJ’s determination that he did not meet the adaptive-deficit requirement or the
other-impairment requirement was not supported by substantial evidence because “the
ALJ misstated and overstated some of the evidence” and because the ALJ’s conclusion
regarding the Listing contradicts some of his own findings. [Doc. 10 at 12-24].
As to the adaptive-deficit requirement, Plaintiff first reviews the evidence that
would have supported a determination in his favor. [Doc. 10 at 14-17, 20-21]. Second,
he argues that the ALJ erred by misstating and overstating evidence in support of his
determination that Plaintiff did not suffer from any adaptive deficits. [Id. at 17-20].
Third, Plaintiff contends that the ALJ’s reliance on the opinion of Dr. McAdams was
unfounded. [Id. at 21-22]. Fourth, he asserts that there is no evidence that his
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functioning and behavior conflicts with the diagnosis of mild mental retardation.
[Id. at 23]. Finally, he goes on to argue that the fact that the ALJ limited the RFC to
non-reading positions, limited contact with the public and co-workers, and a light
exertional level with a sit/stand option conflicts both with the ALJ’s determination that
Plaintiff’s difficulties with reading did not amount to a deficit in adaptive functioning
and with his determination that Plaintiff did not have other physical or mental
impairments that impose significant work-related limitations. [Id. at 18, 23-24].
The undersigned finds no grounds for reversal in any of these arguments. First,
it is well established that an ALJ is not required to find in the claimant’s favor simply
because there is record evidence that provides support for the claimant’s allegations.
As the Eleventh Circuit has stated, “Even if the evidence preponderates against the
Commissioner’s findings, [the court] must affirm if the decision reached is supported
by substantial evidence.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003)
(per curiam) (internal quotation marks omitted). Thus, the fact that portions of the
record evidence support Plaintiff’s allegations does not require reversal.
Second, for similar reasons, the Court is unpersuaded that the ALJ impermissibly
relied on, misstated, or overstated evidence in support of his determination that Plaintiff
did not suffer from any adaptive deficits. Plaintiff contends that the ALJ improperly
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relied on the fact that Plaintiff lived alone since 2008 in the face of evidence that he was
financially dependant on others; found that Plaintiff could read the newspaper to follow
sports despite evidence that he never passed the Georgia Basic Skills Test for reading
in any year; found that Plaintiff earned “significant sums” at jobs every year from
1987 through 2008, although the evidence showed that he only earned at the substantial
gainful activity level three of those years; and relied on a letter stating that Plaintiff was
not in special education classes despite other evidence showing that he attended small
groups for reading and math in 1979 through 1982 and stopped only upon his mother’s
insistence. [Id. at 17-20].
Review of the ALJ’s opinion and the record evidence shows, however, that each
of the factual findings Plaintiff challenges is supported by substantial evidence.
Despite Plaintiff’s suggestion to the contrary, the ALJ did not presume that Plaintiff
had lived completely independently since 2008 but instead expressly took into
consideration Dr. Johnson’s observation that Plaintiff has not been able to hold a
steady, full-time job to the extent that he could consistently support himself and
Plaintiff’s mother’s statements that Plaintiff had poor money management skills,
needed her help and occasional funding, and was often cheated by others. [R19-21].
Similarly, while Plaintiff implies that the ALJ improperly presumed that Plaintiff was
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employed in substantial gainful activity every year from 1987 through 2008, review of
the decision reveals that the ALJ expressly recognized that Plaintiff earned at the
substantial gainful activity level in only three of those years. [R17]. The fact that
Plaintiff never passed the Georgia Basic Skills Test for reading in any year does not
undermine the ALJ’s decision to credit Plaintiff’s testimony that could read the
newspaper to follow sports, particularly in light of the fact that Plaintiff also earned a
GED after he stopped attending high school. [R17]. Additionally, review of the record
supports the ALJ’s decision to credit the letter stating that Plaintiff had never been
placed in special education classes, as the record indicates that the school did testing
in which it found Plaintiff to be learning disabled and not mentally retarded, teachers
felt Plaintiff was performing below his potential, the school provided Plaintiff with
additional resources due to learning disabilities, the school promoted him every year,
and both Plaintiff and his mother repeatedly reported that he had never been placed in
special-education classes. [R17, 60, 169, 261-64, 271-86, 322, 344]. Even if the Court
disagreed with the ALJ’s assessment of the evidence, it is not within the Court’s power
to re-decide the facts. See Werner v. Comm’r of Soc. Sec., 421 Fed. Appx. 935, 939
(11th Cir. Mar. 21, 2011) (per curiam) (“The question is not, as [the plaintiff] suggests,
whether ALJ could have reasonably credited his testimony, but whether the ALJ was
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clearly wrong to discredit it.”); Dyer, 395 F.3d at 1210 (noting that a court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner). It would therefore be improper to reverse the ALJ’s decision simply
because he could reasonably have interpreted the evidence differently.
Third, the Court is unconvinced by Plaintiff’s argument that the ALJ
impermissibly relied on Dr. McAdams’s opinion.
Plaintiff points out that
Dr. McAdams did not perform psychological testing and asserts that some of the
information Dr. McAdams received was inaccurate or conflicting, such statements
indicating that Plaintiff had not been placed in special education classes and Plaintiff
reporting that he managed his own finances, while his mother said he required
assistance. [Doc. 10 at 22]. Plaintiff argues that Dr. McAdams’s opinion therefore
relied on less information and less-accurate information than Dr. Johnson’s opinion
relied on and that, as a consequence, the ALJ erred in crediting Dr. McAdams’s opinion
over Dr. Johnson’s. [Id.].
Notably, Plaintiff does not provide any authority that might supply grounds for
a determination that the ALJ was not permitted to credit Dr. McAdams’s report over
Dr. Johnson’s as a matter of law. [Doc. 10 at 21-22; Doc. 14 at 7-8]. Moreover, the
argument appears to yet another invitation to the Court to impermissibly second-guess
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2)
the ALJ’s assessment of the facts where the ALJ in fact based his evaluation upon
substantial evidence. Contrary to Plaintiff’s representations, the record shows that:
while Dr. McAdams did not perform IQ testing, she did perform an MMSE, [R324];
both Dr. McAdams and Dr. Johnson were told that Plaintiff was never placed in special
education, [R297, 322]; and Dr. McAdams reviewed Dr. Johnson’s report and therefore
knew about Plaintiff’s mother’s report regarding Plaintiff’s financial support and the
results of the cognitive testing Dr. Johnson conducted, [R299-302, 322]. Thus, it does
not appear that Dr. Johnson was privy to more information than Dr. McAdams.
Additionally, the ALJ supplied a reasonable explanation for crediting
Dr. McAdams’s findings over Dr. Johnson’s when he found that Plaintiff’s history of
marijuana use was a severe impairment and noted that it was thought to relate to a lack
of motivation reported in Dr. Johnson’s examination, [R16, 20], and he explained that
Plaintiff’s own reports of his activities of daily living, which included reports that he
does not require assistance with meal preparation, household tasks, or shopping, he
spends his day exercising, watching television, working out, and walking, he works
three day a week, and he enjoys artwork, movies, and dining out, called into question
the accuracy of Dr. Johnson’s mental-retardation diagnosis, [R20]. For these reasons,
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the Court therefore finds no grounds for reversal in the ALJ’s decision to credit
Dr. McAdams’s opinion over that of Dr. Johnson.
Fourth, it is simply not true that the record does not contain evidence that
Plaintiff’s functioning and behavior conflicts with the diagnosis of mild mental
retardation. For example, the record indicates that during Dr. McAdams’s examination
of Plaintiff in December 2010, Plaintiff reported that he does not require assistance with
meal preparation, household tasks, or shopping, he spends his day exercising, watching
television, working out, and walking, he works three days a week, and he enjoys
artwork, movies, and dining out; upon evaluation of Plaintiff’s mental status,
Dr. McAdams observed that he was well oriented and had no obvious deficits with
memory functioning, his insight into functioning and judgment seemed fair, and he
appeared to have no aberrant behavior or emotional functioning; Dr. McAdams opined
that Plaintiff’s past marijuana use related to his reported lack of motivation noted in a
previous exam, that she could find no clear reason why Plaintiff had applied for
disability assistance, as he also had no problems with sustained attention or
concentration, that Plaintiff was able to understand, remember, and follow simple
instructions, that Plaintiff did not appear to be overwhelmed by minor stressors, and
that his functioning was within the borderline range; and Dr. McAdams noted that
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while Plaintiff may be a slow learner, given his ability to maintain employment over
the years, live alone, and manage activities of daily living fairly well, mental retardation
was not suspected. [R321-24]. The record also shows that while in school, Plaintiff
was considered to be learning disabled but not mentally retarded, and that he ultimately
went on to earn a GED. [R169, 275]. Plaintiff also reported to the ALJ that he has
lived in an apartment by himself since 2008, can read the newspaper well enough to
follow basketball, and goes to the library to check out DVDs and look at National
Geographic. [R53-56]. Additionally, there is evidence that Plaintiff worked and earned
a non-trivial amount of money each year from 1987 through 2008. [R161]. Together,
this evidence certainly constitutes “more than a scintilla” of evidence in conflict with
the diagnosis of mild mental retardation. See Bloodsworth, 703 F.2d at 1239.
Plaintiff’s fifth argument—that the limitations the ALJ imposed in the RFC
suggest both a deficit in adaptive functioning and “a physical or other mental
impairment imposing an additional and significant work-related limitation of
function”—is also unconvincing. In essence, Plaintiff argues that because the ALJ
crafted an RFC limiting him to simple, light work with a sit/stand option, no reading
requirement, and only occasional superficial contact with the general public and
coworkers, Plaintiff therefore must have suffered from a deficit in adaptive functioning
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and “a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” [Doc. 10 at 23-24; Doc. 14 at 8-9]. However,
Plaintiff fails to proffer any authority to suggest that such bootstrapping is
permissible—let alone required—and the Court also knows of none. [Doc. 10 at 23-24;
Doc. 14 at 8-9]. Indeed, in the Court’s experience, it is not at all unusual for an ALJ
to craft an RFC more restrictive than his or her limitations findings require, simply to
give the claimant the benefit of the doubt or, likely, to provide some allowance for
harmless error.
To Plaintiff’s credit, it does appear that the ALJ erred in determining that
Plaintiff did not have a deficit in adaptive functioning, as he credited the medical
opinions restricting Plaintiff to limited basic interaction with the general public and
coworkers, yet found that Plaintiff “d[id] not appear to have deficits in functional
adaptations.” [See R17-18, 20-21, 318, 341].12 Nevertheless, to the extent that the ALJ
12
It is also arguable that Plaintiff’s reading difficulties may have constituted
a deficit in adaptive functioning. However, while there is certainly evidence sufficient
to support such a determination, the ALJ’s decision also cites substantial evidence to
the contrary—including Plaintiff’s GED and ability to read the newspaper well enough
to understand a sports article. [See R17]. Although the ALJ’s decision does not
expressly refer to the evidence, it also bears noting that in an adult function report,
Plaintiff indicated that he could follow written instructions well and reported “reading”
as his hobby. [R198-99]. Plaintiff’s mother also stated that Plaintiff could follow basic
written instructions. [R244]. Thus, the undersigned finds that there was substantial
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did in fact err in making this adaptive-functioning determination, the error is harmless,
as Plaintiff has failed to show that he had “a physical or other mental impairment
imposing an additional and significant work-related limitation of function.”
As Plaintiff points out,13 in the absence of a requirement for a specific degree of
limitation, the Eleventh Circuit has held that even a minimal limitation will satisfy a
listing’s requirement. See Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991)
(holding that “an obese claimant need present no more than evidence of minimal
degenerative joint changes to meet the required showing of ‘X-ray evidence of arthritis’
under Listing 10.10(A)”). Here, however, the Social Security regulations expressly
provide that, for the purposes of Listing 12.05C, if an “additional impairment” is not
“severe” as defined in 20 C.F.R. §§ 404.1520(c) and 416.920(c), the Commissioner
“will not find that the additional impairment(s) impose[] ‘an additional and significant
work-related limitation of function.’ ” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00A.
Thus, Plaintiff was required to demonstrate that his “physical or other mental
impairments” were “severe” in order to satisfy the second portion of Listing 12.05C.
evidence to support a determination that Plaintiff did not suffer from reading
difficulties amounting to a deficit in adaptive functioning.
13
[Doc. 10 at 14 & n.49].
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See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C (requiring “[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”)
(emphasis
added));
cf.
Gibbs
ex
rel.
Barris
v.
Barnhart,
130 Fed. Appx. 426, 430 (11th Cir. May 5, 2005) (per curiam) (holding that if an
additional impairment is not “severe” as defined in 20 C.F.R. § 416.924, it cannot
impose an additional and significant limitation of function satisfying listing 112.05D).
Curiously, Plaintiff fails to allege what mental impairment other than his
intellectual functioning may have limited his ability to interact appropriately with the
public and coworkers. [See Doc. 10 at 23-24; Doc. 14 at 8-9]. Nor does he raise any
argument that his calluses and whiplash constituted severe impairments or continued
to impose significant work-related limitations of function. [See Doc. 10 at 23-24;
Doc. 14 at 8-9]. It is also noteworthy that Plaintiff chose not the challenge the ALJ’s
reliance on evidence that Plaintiff’s alleged physical impairments had resolved,
[R19 (referencing Plaintiff’s release from treatment for whiplash and low-back pain),
20 (citing Dr. Ross’s notation that Plaintiff’s foot condition had improved)].
[See Doc. 10 at 23-24; Doc. 14 at 8-9]. Thus, as the Commissioner points out, because
Plaintiff did not challenge the ALJ’s finding at step two that Plaintiff’s severe mental
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impairments were limited to intellectual-functioning impairments and that Plaintiff’s
alleged physical impairments due to calluses and whiplash did not cause more than
minimal limitations in the ability to perform basic work related activities, he has waived
any argument that he suffered from “a physical or other mental impairment imposing
an additional and significant work-related limitation of function.” [See Doc. 13 at 1819 (citing Sanchez v. Comm’r of Soc. Sec., 507 Fed. Appx. 855, 856 n.1 (11th Cir.
Feb. 8, 2013) (per curiam) (noting that claimant waived certain arguments by not
expressly challenging the ALJ’s findings); Outlaw, 197 Fed. Appx. at 827 n.3 (finding
that the plaintiff waived an issue by failing to elaborate on his argument or provide a
citation to authority regarding the argument))].
For all of these reasons, the Court concludes that Plaintiff has failed to show any
basis for ruling that the ALJ erred in his determination that Plaintiff’s condition does
not meet Listing 12.05C.
VII. CONCLUSION
The ALJ erred by failing to reconcile the RFC with his assignment of “significant
weight” to the reviewer’s opinions that Plaintiff is moderately limited in his ability to
sustain an ordinary routine without special supervision. Thus, the final decision of the
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Commissioner is hereby REVERSED, and the case is REMANDED for further
proceedings consistent with this order and opinion.
The Clerk is DIRECTED to enter final judgment in Plaintiff’s favor.
IT IS SO ORDERED and DIRECTED, this the 22nd day of September, 2015.
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