Smith v. Colvin

Filing 16

ORDER and OPINION AFFIRMING the final decision of the Commissioner denying Plaintiff SSI benefits. The Clerk is DIRECTED to enter final judgment in favor of the Commissioner. Signed by Magistrate Judge Alan J. Baverman on 3/7/2018. (btql)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
EDDIE LEE THOMAS SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner
of Social Security,
Defendant.

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION FILE NO.
1:16-CV-04686-AJB

O R D E R A N D O P I N I O N1
Plaintiff Eddie Lee Thomas Smith brought this action pursuant to § 1631(c) of
the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial review of the final
decision of the Acting Commissioner of the Social Security Administration (“the
Commissioner”) denying his application for Supplemental Security Income (“SSI”).2
1

The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Dkt. Entries dated
01/17/2017). Therefore, this Order constitutes a final Order of the Court.
2

Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., provides
for SSI for the disabled. Title II of the Social Security Act provides for federal
Disability Insurance Benefits (“DIB”). 42 U.S.C. § 401, et seq. The relevant law and
regulations governing the determination of disability under a claim for DIB are nearly
identical to those governing 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)). Title 42 U.S.C. § 1383(c)(3) renders the judicial provisions of

AO 72A
(Rev.8/8
2)

For the reasons set forth below, the undersigned AFFIRMS the final decision of the
Commissioner.
I.

PROCEDURAL HISTORY
Plaintiff filed an application for SSI on May 28, 2010 alleging disability

commencing that same date. [Record (hereinafter “R”) 252]. Plaintiff’s application
was denied initially and on reconsideration. [R145, 153]. Plaintiff then requested a
hearing before an Administrative Law Judge (“ALJ”). [R165]. A hearing was held on
February 9, 2012 where Plaintiff was represented by counsel. [R34-69]. The ALJ
issued a decision on March 28, 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.
[R128].
Plaintiff sought review by the Appeals Council, which vacated the ALJ’s
decision and remanded the case on the grounds that the ALJ’s decision did not

42 U.S.C. § 405(g) fully applicable to claims for SSI. 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. However, different statutes and regulations
apply to each type of claim. Many times parallel statutes and regulations exist for DIB
and SSI claims. Therefore, citations in this Order should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations of
statutes or regulations found in quoted court decisions.
2

AO 72A
(Rev.8/8
2)

(1) address all IQ test scores, (2) clarify Plaintiff’s cognitive impairment in the RFC,
and (3) state limitations in vocationally relevant terms. [R141-42].
Another hearing was held on August 25, 2015. [R73]. On September 25, 2015,
the ALJ issued a second decision, concluding that Plaintiff was not disabled. [R14].
Plaintiff sought review by the Appeals Council, [R12], which review was denied on
October 28, 2016, [R6], making the ALJ’s decision the final decision of the
Commissioner.
Plaintiff then filed the instant action in this Court on December 21, 2016, seeking
review of the Commissioner’s decision. [Doc. 1]. The answer and transcript were filed
on May 30, 2017. [Docs. 9-10]. On July 5, 2017, Plaintiff filed a brief arguing that
the Commissioner’s decision must be reversed, [Doc. 13], and on August 2, 2017, the
Commissioner filed a response in support of the decision, [Doc. 14].3 The matter is
now before the Court upon the administrative record, the parties’ pleadings and briefs,4
and it is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

3

Plaintiff did not file a reply brief. (See Dkt.).

4

Neither party requested oral argument. (See Dkt.).
3

AO 72A
(Rev.8/8
2)

II.

PLAINTIFF’S CONTENTIONS
As set forth in Plaintiff’s brief, the issue to be decided is whether the ALJ erred

in concluding that Plaintiff did not meet Listing 12.05 by not finding that:
1.

Plaintiff meets the second requirement of the Listing 12.05C test;

2.

Plaintiff’s IQ score range of 60 to 70 on three different testing
occasions satisfied the first requirement of the Listing 12.05C test;
and

3.

Deficits in Plaintiff’s adaptive functioning that manifested prior to
the age of 22 satisfied the third requirement of the Listing 12.05C
test.

[Doc. 13 at 1].
III.

STATEMENT OF FACTS5
A.

Background

Plaintiff was born in July 1984 and, therefore, was 26 years old on the alleged
onset date. [R252]. Plaintiff completed eighth grade, [R82], in special education
classes, [R49]. Although, he left his work history report incomplete, [R286], Plaintiff
received some negligible W2 income in 2004, 2008, and 2011-12. [R272-73]. He
alleges disabling conditions of learning disabilities and an inability to read. [R292].

5

In general, the records referenced in this section are limited to those
deemed by the parties to be relevant to this appeal. [See Docs. 13, 14].
4

AO 72A
(Rev.8/8
2)

B.

Lay Testimony

Plaintiff testified at his 2012 and 2015 hearings. In 2012, Plaintiff testified that
he lived with his then-girlfriend, Neekol Maria Brown (“Ms. Brown”), in rented
Section 8 housing. [R41]. In 2015, he testified that he was engaged to LaQuanda
Berley, who paid for the apartment in which they lived together with her three children.
[R79-81]. In 2012, he testified that he has a seven year old daughter who lived with
him but that she was mostly cared for and financially supported by Ms. Brown. [R47].
In 2015, he testified that this daughter resided with her mother. [R80].
Plaintiff testified that, in the past, he worked at a Dollar Store position he got
through his girlfriend, but, after two days, gave up because he could not read the labels
to “put stuff in position the correct way.” [R44-45, 51]. He also testified that he
previously worked at a recycling place cleaning catalytic converters and, because the
supervisor got on his nerves, he would “just walk off . . . just leave.” [R102, 113-14].
Plaintiff explained that he stopped going to that job because it only provided him with
work six days a month. [R114]. He testified that a girlfriend got him a job at a
warehouse that required a lot of reading and because he was paid based on what he
could produce, he stopped working when his paycheck “was like a $100 and something
dollar.” [R102-03].
5

AO 72A
(Rev.8/8
2)

Upon questioning, the ALJ confirmed that Plaintiff had previously worked as a
“driver’s helper” for less than a month when he was 17 or 18, through a temporary
agency, which consisted of unloading food from trucks. [R110-11]. He testified that
he cannot follow verbal instructions because he forgets. [R106].
Plaintiff further testified that he does not have a driver’s license because he does
not know how to read, but that he can write his name. [R41-42, 47]. In 2012, he
testified that Ms. Brown took him to the hearing, [R42], and, in 2015, he testified that
his sister and her boyfriend took him, [R81]. He claimed that he has never taken public
transit by himself and cannot read street signs to drive. [R50].
Plaintiff stated that he can do dishes but can only cook simple things like
noodles. [Id.]. He does not know how to do laundry. [R52]. He described his reading
and writing abilities as poor and his arithmetic as fair. [R42-43]. He testified that he
cannot read his own mail, books, newspapers, or magazines, and required help filling
out his SSA application and reports. [R49, 86]. When he received checks for work, he
cashed them with someone’s help. [R52]. He reported that has never gone grocery
shopping alone, [R53], and that he has tried to use a computer but cannot because he
“doesn’t know what to look for.” [R84]. He spends his days watching television.

6

AO 72A
(Rev.8/8
2)

[R45]. Plaintiff’s girlfriends also testified and, essentially, verified Plaintiff’s
statements concerning his living situation and daily activities. [R54-60, 89-98].
C.

Objective Records
1.

Educational Testing Records

On December 6, 1993, when Plaintiff was in third grade, Gail Golden performed
the Wechsler Intelligence Scale for Children-III (WISC-II) and evaluated him with an
overall IQ of 75, noting weaknesses in visual sequencing, processing speed, and
cognitive functioning (reasoning/judgment organization). [R383].
On October 10, 1996, when Plaintiff was 12 years old, David Batchelor, a school
psychologist, administered the WISC-II, the Development Test of Visual-Motor
Integration (VMI), the Wide Range Achievement Test-3 (WRAT-3), the LD Screening
Checklist, and the Kaufman Brief Intelligence Test as part of the three-year reevaluation requirement for students in special education programs. [R432]. Plaintiff
was assessed with an IQ of 68 with a borderline range on the verbal scale and a midrange on the performance scale, resulting in overall intelligence in the mid range with
weaknesses in long-term memory of factual data. [R433-34]. Dr. Bachelor concluded
that Plaintiff’s “inappropriate behavior patterns interfere with classroom functioning
and social/emotional development.” [R435].
7

AO 72A
(Rev.8/8
2)

2.

Consultative Exams

On July 21, 2010, Plaintiff was referred for evaluation to consultative medical
examiner Steven Snook, Ph.D., (“Dr. Snook”), a licensed psychologist. [R350-56].
Dr. Snook conducted a clinical interview and mental status examination; administered
the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), Wide Range
Achievement Test-Fourth Edition (WRAT-4), Trail Making Test Part A and B, and Rey
15 Item Memory Test; and reviewed records. [R351]. He noted that Plaintiff was
driven to the examination by Ms. Brown, who provided collateral information after
Plaintiff’s initial interview.

[R352].

Plaintiff reported “no significant medical

concerns” and alleged impairments of learning disability and illiteracy. [Id.].
Plaintiff reported leaving high school after completing eighth grade, enrollment
in special education classes while in middle school, and receiving grades of D’s and
F’s. [Id.]. Although Plaintiff denied difficulties with teachers and peers, the records
reviewed reflected frequent truancy. [Id.]. Plaintiff reported that he worked for a
delivery service for three months but lost control of a dolly and injured his leg. [Id.].
He also reported that he never received mental health treatment or was hospitalized for
psychiatric reasons but, at the evaluation, both Plaintiff and Ms. Brown reported
“irritability and mood swings” beginning during Plaintiff’s five month incarceration for
8

AO 72A
(Rev.8/8
2)

cocaine possession, as well as recent sleep disturbance and decreased appetite. [R35253].
Plaintiff reported that he was “able to attend to his activities of daily living
independently to include showering, grooming, and dressing.” [R353]. He also
reported that he could prepare simple foods in the oven or microwave, perform basic
household chores, including the use of appliances and laundry-related tasks, had no
driver’s license (but could drive), could make simple purchases, but had limited
financial management ability (requires assistance with bank statements and legal
documents). [Id.].
Dr. Snook found that Plaintiff’s behavior was cooperative, his speech normal,
his associations tight, his thought content grossly logical, and his recent and remote
memory, insight, judgment, and decision-making abilities were intact. [Id.]. However,
Dr. Snook noted that Plaintiff’s “effort was less than would have been anticipated” as
he “appeared to have minimal difficulty with attention and concentration however
tended to give up easily despite redirection and praise.” [R354]. His scores on the
Trail Making tests were in deficient ranges as was his IQ score of 63. [R355].
Dr. Snook noted that, if retested, there is a 95 percent chance Plaintiff would achieve
an IQ score between 60 and 68. [Id.].
9

AO 72A
(Rev.8/8
2)

However, Dr. Snook also noted that Plaintiff’s
scores were considered to be under representations of his current level
intellectual ability. Although he was cooperative throughout the interview
and made no obvious attempts to malinger, his efforts during assessments
were less than would be anticipated. Therefore, the validity of scores and
provided information was questionable.
[Id.]. Dr. Snook further noted that, although Plaintiff’s
cognitive assessment indicated a deficient level of functioning, he was
viewed to most likely function within a borderline range of ability based
on content of conversation . . . has a significant legal history . . . a history
of marijuana abuse and indicated currently smoking marijuana four times
per week on average . . . based on his consistent substance use and
questionable effort at times during the evaluation, diagnosis was deferred.
[R356]. Dr. Snook opined that Plaintiff would have
minimal difficulty maintaining attention and concentration. He would
likely be able to understand and remember simple but not complex
instructions. Currently, he would not likely have difficulty interacting
withy peers, supervisors, and the general public. He would likely be able
to adhere to work schedules and meet appropriate production norms.
[Id.].
D.

Vocational-Expert Testimony

Vocational experts (“VE”) testified at both of Plaintiff’s hearings before the ALJ.
[R62-69 (2012); R109-20 (2015)]. At the 2015 hearing, the ALJ asked the VE what
a person of Plaintiff’s age, education, and experience with a medium exertional level,

10

AO 72A
(Rev.8/8
2)

with difficulty reading and written instructions, who is restricted to simple tasks and
can understand and carry out basic instructions and should avoid interactions with large
crowds of people, a fast pace or condensed time pressures and quotas, can do. [R11617]. The VE testified that such a person could be a bus person/dining room attendant,
of which there are 1,000 positions in Georgia and 57,800 positions nationally; a
launderer, of which there are 800 positions in Georgia and 27,700 positions nationally;
and an automobile detailer, of which there are 1,200 positions in Georgia and 50,600
nationally. [R117-18].
The ALJ also asked what jobs the Plaintiff could do if he changed the
hypothetical to light work, instead of medium, and added the limitation of poor ability
to focus and maintain attention and concentration, work schedule and attendance, and
keep and handle work place stress. [R118-19]. The VE responded that under that
hypothetical, there would be no work that Plaintiff could perform. [R119].
IV.

ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact:
1.

The claimant has not engaged in substantial gainful activity since
May 28, 2010, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: organic mental
disorder, affective disorder, history of low blood pressure, and
11

AO 72A
(Rev.8/8
2)

history of polysubstance abuse (alcohol and illicit drugs)
(20 CFR 416.920(c)).
...
3.

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 416.920(d), 416.925 and 416.926).

...
4.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than the full range of medium work as defined in
20 CFR 416.967(c). The claimant is limited to frequently kneeling,
crouching, stooping, and balancing and occasionally crawling and
climbing ropes, ladders, and scaffolds. The claimant is restricted
to simple tasks but may occasionally have difficulty understanding
written instructions.
However, he can understand verbal
instructions. The claimant must avoid interacting in a work place
with large crowds of people (five or more at a time). He must also
avoid jobs requiring fast pace, intense job production quotas.
However, with these restrictions, he is able to focus and maintain
attention/concentration and complete a normal workday schedule.

...
5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born on July 15, 1984 and was 25 years old,
which is defined as a younger individual age 18-49, on the date the
application was filed (20 CFR 416.963).

12

AO 72A
(Rev.8/8
2)

7.

The claimant has a limited education and is able to communicate in
English (20 CFR 416.964).

8.

Transferability of job skills is not an issue because claimant does
not have past relevant work (20 CFR 416.968).

9.

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 416.969 and 416.969(a)).

...
10.

The claimant was not under a disability, as defined in the Social
Security Act, at any time since May 28, 2010, the date the
application was filed (20 CFR 416.920(f)).

[R19-26].
The ALJ accorded “substantial weight” to Dr. Snook, who conducted a
psychological evaluation of Plaintiff, diagnosed cannabis abuse, and a Global
Assessment of Functioning (“GAF”) of 75,6 and opined that Plaintiff could understand
and remember simple instructions, interact with peers, supervisors, and the public,
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) (“DSM-IV-TR”). A GAF
score in the range of 71 to 80 indicates that “[i]f symptoms are present, they are
transient and expectable reactions to psychosocial stressors (e.g., difficulty
concentrating after family argument); no more than slight impairment in social,
occupational, or school functioning (e.g., temporarily falling behind in schoolwork).”
DSM-IV-TR at 34.
13

AO 72A
(Rev.8/8
2)

adhere to work schedules, meet appropriate production norms, and would not likely
decompensate under stressful situations. [R24]. However, the ALJ observed that
“Dr. Snook questioned the validity of scores and information provided.” [Id.]. The
ALJ also noted Plaintiff’s 1993 and 1996 childhood IQ testing results and concluded
that
[t]he evaluating psychologist’s notes regarding behaviors that might have
hindered the claimant’s October 1996 intellectual testing scores as well as
the higher intellectual scores he achieved on testing just three years prior
support Dr. Snook’s opinion that the claimant could have performed
better during the consultative psychological evaluation.
[Id.]. In evaluating whether Plaintiff met Listing 12.05C, the ALJ concluded that
[a]lthough the claimant has verbal, performance, and IQ scores below 70,
he has not described daily activities that were not limited to the extent one
would expect. The claimant noted he was able to tend to his personal
hygiene and grooming needs independently . . . prepare meals, perform
household chores, drive, and make simple purchases.
[R21-22].
The ALJ explained Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible,” [R25], because
Plaintiff
described daily activities that are not limited to the extent one would
expect given the complaints of disabling symptoms and limitations.
Furthermore, the record reflects no actual treatment for the alleged
14

AO 72A
(Rev.8/8
2)

impairments. Moreover, a review of the claimant’s work history shows
that the claimant worked only sporadically prior to the alleged disability
onset date, which raises a question as to whether the claimant’s continued
unemployment is actually due to medical impairments.
[Id.].
V.

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

15

AO 72A
(Rev.8/8
2)

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,
16

AO 72A
(Rev.8/8
2)

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),
superseded 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).
VI.

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
17

AO 72A
(Rev.8/8
2)

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.3d 1436, 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
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]
18

AO 72A
(Rev.8/8
2)

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.
VII. ANALYSIS
Plaintiff claims that the ALJ erred as a matter of law by failing to find that
Plaintiff met Listing 12.05C.

[Doc. 13 at 1].

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

7

meet

the

duration

requirement. 7

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.
19

AO 72A
(Rev.8/8
2)

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
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)).
The introduction to the mental-disorder listings explains that the structure of the
mental disorders listings for intellectual disability (Listing 12.05) differs from that of
other mental disorders listings. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A.
Listing 12.05 contains an introductory paragraph with the diagnostic description for
intellectual disability and additional sets of criteria. Id. To meet Listing 12.05, the
impairment must satisfy the diagnostic description in the introductory paragraph and
20

AO 72A
(Rev.8/8
2)

any one of the additional sets of criteria found in paragraphs A, B, C, or D.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A); see id., referencing §§ 12.05A-D,
112.05A-F); see also 20 C.F.R. § 416.925(c)(3) (stating that an impairment meets a
listing only “when it satisfies all of the criteria of that listing, including any relevant
criteria in the introduction”). This requires the claimant to satisfy two sets of criteria.
First, the claimant must show his impairment causes “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, 112.05. The diagnostic descriptions at Listing 12.05 are consistent with
accepted medical standards, which recognize that a diagnosis of intellectual disability
must be based on deficits or impairments in adaptive functioning rather than on
IQ scores alone. Compare 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.05, 112.05 with
DSM-IV-TR at 41-43, 49; see also DSM-IV-TR at 42 (“Impairments in adaptive
functioning, rather than a low IQ, are usually the presenting symptoms in individuals
with [Intellectual Disability].”). “[A]daptive functioning ‘refers to how effectively
individuals cope with common life demands and how well they meet the standards of
personal independence expected of someone in their particular age group, sociological
21

AO 72A
(Rev.8/8
2)

background, and community setting.’ ”

O’Neal v. Comm’r of Soc. Sec.,

614 Fed. Appx. 456, 459 (11th Cir. June 10, 2015)8 (quoting DSM-IV-TR at 42); see
also Heller v. Doe, 509 U.S. 312, 329 (1993) (explaining that within the context of
“mental retardation,” adaptive functioning refers to an individual’s “effectiveness in
areas such as social skills, communication, and daily living skills, and how well the
person meets the standards of personal independence and social responsibility expected
of his or her age by his or her cultural group”) (internal punctuation omitted);
Rodriguez v. Comm’r of Soc. Sec., 633 Fed. Appx. 770, 774 (11th Cir. Dec. 31, 2015)
(“[A]daptive functioning refers ‘to how well a person meets standards of personal
independence and social responsibility, in comparison to others of similar age and
sociocultural background. Adaptive functioning involves adaptive reasoning in three
domains: conceptual, social, and practical.’ ”) (quoting Diagnostic and Statistical
Manual of Mental Disorders 37 (5th ed. 2013)); Schrader v. Acting Comm’r of Soc. Sec.
Admin., 632 Fed. Appx. 572, 576 (11th Cir. Dec. 23, 2015) (noting that the
Commissioner’s policy states that “adaptive functioning refers ‘to the individual’s
progress in acquiring mental, academic, social and personal skills as compared with
8

While unpublished opinions are not binding precedent, they may be
considered as persuasive authority. See 11th Cir. R. 36-2; see also United States v.
Almedina, 686 F.3d 1312, 1316 n.1 (11th Cir. 2012).
22

AO 72A
(Rev.8/8
2)

other unimpaired individuals of his/her same age.’ ” (quoting Program Operations
Manual

System

(“POMS”)

DI

24515.056(D)(2),

available

at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0424515056 (last visited 3/8/2018)9).
Second, after the claimant satisfies the diagnostic descriptions of intellectual
disability in the introductory paragraph of Listing 12.05, the claimant must meet the
severity requirements for one of the additional sets of criteria in the relevant listing.
O’Neal, 614 Fed. Appx. at 459 (Listing 12.05); Dunn v. Colvin, No. 1:12-cv-3256WSD, 2014 WL 221171, at *8 (N.D. Ga. Jan. 21, 2014) (Duffey, J.) (Listing 112.05).
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”).

9

See

“While the POMS does not have the force of law, it can be persuasive.”
Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003).
23

AO 72A
(Rev.8/8
2)

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 v. Callahan, 120 F.3d 1217, 1219
(11th Cir. 1997)).
However, “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
Hubbard v. Colvin, 643 Fed. Appx. 869, 872 (11th Cir. Feb. 17, 2016) (“A valid IQ
score is not conclusive evidence that a claimant has deficits in adaptive functioning if
the ‘score is inconsistent with other evidence in the record on the claimant’s daily
activities and behavior.’ ”) (quoting Lowery, 979 F.2d at 837); Outlaw v. Barnhart,
197 Fed. Appx. 825, 827 (11th Cir. Aug. 10, 2006) (“[A] valid IQ score is not
conclusive of mental retardation when the IQ score is inconsistent with other evidence
in the record about claimant’s daily activities.”). Indeed, an ALJ is allowed some
leeway to evaluate other evidence when determining the validity of an IQ score. Henry
v. Barnhart, 156 Fed. Appx. 171, 173 (11th Cir. Nov. 25, 2005) (citing Lowery,
979 F.2d at 837). “An ALJ should examine whether the results of an I.Q. test are
24

AO 72A
(Rev.8/8
2)

consistent with the other medical evidence and the claimant’s daily activities and
behavior.

Henry, id. (citing Popp v. Heckler, 779 F.2d 1497, 1499-1500

(11th Cir. 1986)); see also Siron v. Comm’r, Soc. Sec. Admin., 556 Fed. Appx. 797, 799
(11th Cir. Feb. 18, 2014) (“[R]esults of intelligence tests are only part of the overall
assessment, [and] the narrative report that accompanies the test results should comment
on whether the IQ scores are considered valid and consistent with the developmental
history and the degree of functional limitation.’ ”) (quoting 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00D.6.a.).
A.

Whether Plaintiff’s IQ scores on three different occasions
satisfy the first requirement of Listing 12.05C.

Plaintiff concedes that Dr. Snook found his IQ score of 63 underrepresentative
due to Plaintiff’s overall presentation and, although he found Plaintiff deficient and that
there was a 95% chance Plaintiff would attain the same range if re-tested, he deferred
a conclusion on his intellectual diagnosis. [Doc. 13 at 8 (citing R355)]. However,
Plaintiff claims that the ALJ erred as a matter of law because he accepted Plaintiff’s
1993 IQ scores, did not acknowledge that his 1996 scores were a valid reflection of his
functioning, and held that Dr. Snook “questioned the validity of [Plaintiff’s IQ] scores.”

25

AO 72A
(Rev.8/8
2)

[Id. at 10-11]. Plaintiff also contends that merely because Dr. Snook found the scores
“questionable” did not mean that he found them “invalid.” [Id. at 10].
The Commissioner counters that the ALJ may find Plaintiff’s IQ scores invalid
if they are inconsistent with other evidence and, if the ALJ did err, such error was
harmless because the ALJ did not find that Plaintiff had the adaptive functioning
deficits necessary to meet Listing 12.05C. [Doc. 14 at 14-15].
As a preliminary matter, the Court notes that the ALJ considered both Plaintiff’s
1993 and 1996 IQ scores. [R24]. Additionally, it is not clear that the 1993 or 1996 test
scores were performed by “Federal and State agency medical and psychological
consultants, and other contracted medical

and

psychological

experts[.]”

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00H(2)(d). [R361, 383]. Moreover, unlike
Dr. Snook’s report, the 1993 and 1996 reports to not opine on their own validity, id.,
or contain a “narrative report that accompanies the test results [and] comment[s] on
whether the IQ scores are considered valid and consistent with the developmental
history and the degree of functional limitation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00D.6.a. Given the recency and comprehensiveness of Dr. Snook’s examination,
his qualifications as an expert, and his narrative report and comments on the validity

26

AO 72A
(Rev.8/8
2)

of the tests he conducted, as compared to the 1993 and 1996 IQ scores, the Court finds
no error in the ALJ’s decision to accord greater weight to Dr. Snook.
However, assuming the ALJ did err in the weight and interpretation of
Dr. Snook’s IQ findings, there was no error because, as the Commissioner notes, valid
IQ scores create a presumption that may be rebutted with evidence of the claimant’s
daily life. [Doc. 14 at 16]; see also Henry, 156 Fed. Appx. at 173; Siron,
556 Fed. Appx. at 799. Indeed, the regulations provide that:
We generally presume that your obtained IQ score(s) is an accurate
reflection of your general intellectual functioning, unless evidence in the
record suggests otherwise. Examples of this evidence include: a
statement from the test administrator indicating that your obtained score
is not an accurate reflection of your general intellectual functioning, prior
or internally inconsistent IQ scores, or information about your daily
functioning.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00H(2)(d). Here, the ALJ noted Plaintiff’s
1993, 1996, and adult IQ scores, the statement from Dr. Snook regarding the accuracy
of the tests he scored, and information–from evaluators, Plaintiff, and lay
witnesses–concerning Plaintiff’s daily functioning, to conclude that, despite his IQ
scores, he did not meet Listing 12.05C. [R21-22]. As such, the ALJ did not err in his
consideration of Plaintiff’s IQ scores and, even if he had, that error was harmless

27

AO 72A
(Rev.8/8
2)

because he ultimately found that Plaintiff did not meet the listing despite meeting the
IQ score requirement. [Id.].
B.

Whether the Plaintiff meets the second requirement of
Listing 12.05C.

As noted previously, under Listing 12.05C, the claimant must show both a “valid
verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of function.”
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C. Plaintiff claims that the ALJ erred as a
matter of law because, although the ALJ found Plaintiff had severe impairments of
affective disorder, history of low blood pressure, and polysubstance abuse disorder in
addition to an organic mental disorder, he did not find that Plaintiff met the “other
impairment” prong of Listing 12.05C. [Doc. 13 at 7].
The Court disagrees. First, the ALJ did not conclude that Plaintiff did not meet
the “other impairment” requirement of Listing 12.05C. Rather, as discussed in
Part VII.A supra, the ALJ used Plaintiff’s daily activities to rebut the IQ scores’
presumed validity, which is permissible under 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00H(2)(d).

[R21-22].

See Nichols v. Comm’r, Soc. Sec. Admin.,

679 Fed. Appx. 792, 796-97 (11th Cir. Feb. 8, 2017) (holding that the ALJ did not err

28

AO 72A
(Rev.8/8
2)

in finding claimant’s IQ score of 59 invalid where her range of activities and
accomplishments, including reading and understanding English, having a driver’s
license, completing high school with a certificate, having a history of some unskilled
work, raising two children, and handling money, were inconsistent with the IQ results);
Tubbs v. Berryhill, Civ. A. No. 15-00597-B, 2017 WL 1135234, at * 4
(S.D. Ala. Mar. 27, 2017) (“Presumptive disability pursuant to Listing 12.05C is
rebuttable, however, and the Commissioner is charged with determining whether there
is sufficient evidence to rebut the presumption.”). Consequently, because the ALJ
properly rebutted the validity of Plaintiff’s IQ scores, no reversible error has been
shown in the ALJ’s conclusion that Plaintiff did not satisfy Listing 12.05C.
C.

Whether the record demonstrates deficits in adaptive
functioning that manifested prior to age 22, meeting the third
requirement of Listing 12.05C.

Plaintiff claims that the ALJ erred by failing to find that he had adaptive deficits
prior to age 22. [Doc. 13 at 18]. More specifically, Plaintiff claims that his adaptive
deficits are “manifested by low academic achievement with special education classes
and dependence on others to perform simple tasks including reading, filling out forms,
ands taking the bus as well as a very sporadic employment history.” [Id.]. The
Commissioner responds that
29

AO 72A
(Rev.8/8
2)

[a]ssuming arguendo that poor grades, with additional information about
the reason for such grades, may demonstrate in general that a person has
subaverage intellectual functioning, Plaintiff has not shown how his
grades demonstrate deficits in adaptive functioning. Plaintiff’s grades do
not so show in this case because Dr. Snook considered Plaintiff’s
educational history and yet did not conclude that Plaintiff had an
intellectual disability. In fact, Dr, Snook opined that given Plaintiff’s
level of education, employment positions, and content of conversation, his
scores on the IQ test were underrepresentative of his current level of
intellectual ability.
[Doc. 14 at 19-20 (internal citations omitted)]. The Commissioner also argues that
“whether Plaintiff was independent or dependent in his daily activities is a question of
fact, not law, and the ALJ was well within his discretion to conclude, based on
Plaintiff’s own admissions and Dr. Snook’s evaluation, that Plaintiff maintained his
independence. [Id. at 20 (internal citations omitted)].
The Court agrees with the Commissioner that there are no grounds for reversal
in any of these arguments. 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).

30

AO 72A
(Rev.8/8
2)

Thus, the fact that portions of the record evidence support Plaintiff’s allegations does
not require a finding that the ALJ’s decision was not supported by substantial evidence
or otherwise require reversal.
VIII. CONCLUSION
For all of the above and foregoing reasons, the final decision of the
Commissioner denying Plaintiff SSI benefits is AFFIRMED.
The Clerk is DIRECTED to enter final judgment in favor of the Commissioner.
IT IS SO ORDERED and DIRECTED, this the 7th day of March, 2018.

31

AO 72A
(Rev.8/8
2)