Case: 13-10318    Date Filed: 09/11/2013   Page: 1 of 8


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10318
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:11-cv-00239-GRJ



TRACY S. SMITH,

                     Plaintiff - Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

                     Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (September 11, 2013)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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       Tracy S. Smith appeals the magistrate judge’s order affirming the

Administrative Law Judge’s (ALJ) denial of her applications for disability

insurance benefits (DIB) and supplemental security income (SSI), pursuant to 42

U.S.C. §§ 405(g) and 1383(c)(3). Smith originally alleged a disability onset date

of September 2, 2007, following a stroke, which allegedly caused her to experience

difficulty walking, trouble remembering, headaches, and hand cramps. On appeal,

she argues that the ALJ erred in finding that (1) she was not mentally retarded at

step two of the sequential evaluation process, and (2) she did not meet Listing

12.05(C) for mental retardation at step three of the sequential evaluation process.

Specifically, Smith asserts that the ALJ misconstrued her IQ test—on which she

received a score of 59—to conclude that her IQ was above 70. After a thorough

review of the briefs and record, we affirm. 1

                                             I.

       We review the Social Security Commissioner’s decision for substantial

evidence and to ensure that the decision was “based on proper legal standards.”

Winschel v. Comm’r of Soc. Sec., 

, 1178 (11th Cir. 2011) (internal

quotation marks omitted). “Substantial evidence is more than a scintilla and is




       1
         Smith also claims that “[t]he record as a whole supports an additional severe
impairment of bipolar disorder.” However, because Smith has failed to offer any argument to
support her claim, it is deemed abandoned. See Greenbriar, Ltd. v. City of Alabaster, 

, 1573 n.6 (11th Cir. 1989) (stating that issues not argued on appeal are deemed abandoned).
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such relevant evidence as a reasonable person would accept as adequate to support

a conclusion.” 

omitted).

      The Social Security Regulations outline a five-step sequential evaluation

process to determine whether a claimant is disabled. See 20 C.F.R.

§ 404.1520(a)(4). The ALJ must evaluate:

      (1) whether the claimant is currently engaged in substantial gainful
      activity; (2) whether the claimant has a severe impairment or
      combination of impairments; (3) whether the impairment meets or
      equals the severity of the specified impairments in the Listing of
      Impairments; (4) based on a residual functional capacity (“RFC”)
      assessment, whether the claimant can perform any of his or her past
      relevant work despite the impairment; and (5) whether there are
      significant numbers of jobs in the national economy that the claimant
      can perform given the claimant’s RFC, age, education, and work
      experience.

(citing Phillips v. Barnhart, 

, 1237–39

(11th Cir. 2004)); see 20 C.F.R. §§ 404.1520(a)(4)(i)–(v).

                                        II.

      Smith first argues that she established mental retardation as her severe

impairment at step two. At this step, the ALJ must make a “threshold inquiry” as

to the medical severity of the claimant’s impairments. McDaniel v. Bowen, 

, 1031 (11th Cir. 1986); see 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), and

404.1520a(a). “[T]he finding of any severe impairment, whether or not it qualifies

as a disability and whether or not it results from a single severe impairment or a

combination of impairments that together qualify as severe, is enough to satisfy the

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requirement of step two.” Jamison v. Bowen, 

, 588 (11th Cir. 1987);

see 20 C.F.R. § 404.1523. Only slight, trivial impairments that “would clearly not

be expected to interfere with the individual’s ability to work, irrespective of age,

education or work experience” are not deemed severe at this step. 

.

      In addition, an impairment is not severe if it does not significantly limit the

claimant’s ability to do basic work activities, which are defined as “the abilities

and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). Examples of

basic work activities include physical activities like walking, standing, and

carrying, and “seeing, hearing, and speaking,” as well as understanding, following,

and remembering simple instructions, using judgment, “[r]esponding appropriately

to supervision, co-workers[,] and usual work situations,” and “[d]ealing with

changes in a routine work setting.” 

substantial evidence supports the ALJ’s decision that

Smith is not mentally retarded because she presented no evidence that her IQ

limited her ability to do basic work activities. Even Dr. Linda Abeles, who

evaluated Smith’s mental health, opined that Smith was capable of manual labor

work and that Smith’s prognosis for future success in the workplace was “fair,”

despite diagnosing Smith with borderline intelligence. Smith also self-reported on

multiple occasions that she had no mental impairments and that she was of average


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intelligence, and testified before the ALJ that she could read, write, and count

monies. Thus, there was substantial evidence in the record to support the ALJ’s

step two determination.

                                              III.

       At step three, the claimant has the burden of proving that her impairment

meets or equals a listed impairment. See Barron v. Sullivan, 

, 229

(11th Cir. 1991). “To ‘meet’ a Listing, a claimant must have a diagnosis included

in the Listings and must provide medical reports documenting that the conditions

meet the specific criteria of the Listings and the duration requirement.” Wilson v.

Barnhart, 

, 1224 (11th Cir. 2002) (per curiam). “To ‘equal’ a

Listing, the medical findings must be at least equal in severity and duration to the

listed findings.” 

omitted).

       Smith claims that her mental retardation impairment met or equaled Listing

12.05(C). In its introductory paragraph, Listing 12.05, entitled “Mental

retardation,” provides:

       Mental retardation refers to significantly subaverage general
       intellectual functioning with deficits in adaptive functioning initially
       manifested during the developmental period; i.e., the evidence
       demonstrates or supports onset of the impairment before age 22. 2


       2
          We have held that “a claimant need not present evidence that she manifested deficits in
adaptive functioning prior to the age [of] twenty-two, when she presented evidence of low IQ
test results after the age of twenty-two.” Hodges v. Barnhart, 

, 1266 (11th Cir.
2001).
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      The required level of severity for this disorder is met when the
      requirements in A, B, C, or D are satisfied.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (footnote added). Listing 12.05(C)

specifically requires 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.” 

a claimant meets

the criteria for presumptive disability under section 12.05(C) when the claimant

presents a valid I.Q. score of 60 to 70 inclusive, and evidence of an additional

mental or physical impairment that has more than ‘minimal effect’ on the

claimant’s ability to perform basic work activities.” Lowery v. Sullivan, 

, 837 (11th Cir. 1992).

      We conclude that substantial evidence supports the ALJ’s conclusion that,

despite Smith’s IQ scores, she did not meet or equal the criteria of Listing

12.05(C). First, the record supports the conclusion that, due to her limited effort

during examination and apparent fatigue, Smith’s IQ scores were not valid and

underestimated her actual level of functioning. See 20 C.F.R. Pt. 404, Subpt. P,

App. 1 § 12.00(D)(6)(a) (noting that 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”).

Second, even though she was diagnosed with possible borderline intellectual

functioning, this diagnosis alone was insufficient to meet the criteria of Listing
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12.05(C). See 20 C.F.R. § 416.925(d) (“Your impairment(s) cannot meet the

criteria of a listing based only on a diagnosis. To meet the requirements of a listing,

you must have a medically determinable impairment(s) that satisfies all of the

criteria of the listing.”). Given that the administering physician, Dr. Janet

Humphreys, felt that Smith’s IQ scores underestimated her intelligence, the ALJ

properly determined that Smith did not present a valid IQ score of 60 through 70.

See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(C). Finally, the ALJ correctly

noted that Smith’s treatment records did not support a finding of mental

retardation. See Popp v. Heckler, 

, 1500 (11th Cir. 1986) (per

curiam) (“[T]he ALJ was not required to find that [the claimant] was mentally

retarded based on the results of the IQ test. The ALJ is required to examine the

results in conjunction with other medical evidence and the claimant’s daily

activities and behavior.”). Specifically, records showed that Smith did not claim

disability due to mental retardation until a consultative examination conducted

after her hearing in front of the ALJ. Furthermore, during intake for substance

abuse treatment, Smith reported that she had no problems in school and was of

average intelligence, and denied having any problems with abstraction, problem

solving, or thought processes. The fact that none of the other treatment records

diagnosed Smith with mental retardation supports the ALJ’s rejection of the IQ test

results and supports the conclusion that Smith did not meet or equal the criteria of


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Listing 12.05(C). Ultimately, because the record evidence showed that the results

of Smith’s IQ test provided only a low estimate of her IQ and no other medical

source determined that Smith was mentally retarded, substantial evidence supports

the ALJ’s finding that Smith did not meet or equal the criteria of Listing 12.05(C).

      AFFIRMED.




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