VIRGINIA EMERSON HOPKINS, United States District Judge.
Plaintiff Roger Dale Leslie (hereinafter "Mr. Leslie") brings this action under 42 U.S.C. § 405(g), Section 205(g) of the Social Security Act. He seeks review of a final adverse decision of the Commissioner of the Social Security Administration ("Commissioner"), who denied his application for Disability Insurance Benefits ("DIB"). Mr. Leslie timely pursued and exhausted his administrative remedies available before the Commissioner. The case is thus ripe for review under 42 U.S.C. § 405(g). For the following reasons, the court
Mr. Leslie was 51 years old at the time of his hearing before the Administrative Law Judge ("ALJ"). Compare Tr. 186 with Tr. 43. Though he told one doctor he attended school until the tenth grade, he testified that he only completed the fifth or
On August 10, 2011, Mr. Leslie protectively filed a Title II application for a period of disability and DIB. Tr. 77. On October 26, 2011, the Commissioner initially denied these claims. Tr. 78. Mr. Leslie timely filed a written request for a hearing on November 2, 2011. Tr. 86-87. The ALJ conducted a hearing on the matter on July 9, 2013. Tr. 43. On August 30, 2013, she issued her opinion concluding Mr. Leslie was not disabled and denying him benefits. Tr. 23. He timely petitioned the Appeals Council to review the decision on September 9, 2013. Tr. 22. On January 7, 2015, the Appeals Council issued a denial of review on his claim. Tr. 7.
Mr. Leslie filed a Complaint with this court on February 17, 2015, seeking review of the Commissioner's determination. (Doc. 1). The Commissioner answered on October 8, 2015. (Doc. 7). Mr. Leslie filed a supporting brief (Doc. 11) on December 18, 2015, and the Commissioner responded with her own (Doc. 12) on January 19, 2016.
The court's review of the Commissioner's decision is narrowly circumscribed. The function of this court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.2002). The court must "scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). Substantial evidence is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. It is "more than a scintilla, but less than a preponderance." Id.
This court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir.1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, it must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir.1991).
To qualify for disability benefits and establish his or her entitlement for a period of disability, a claimant must be disabled as defined by the Social Security Act and the Regulations promulgated thereunder.
The Regulations provide a five-step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993) (citing to formerly applicable C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir.1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). The sequential analysis goes as follows:
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). The Commissioner must further show that such work exists in the national economy in significant numbers. Id.
After consideration of the entire record, the ALJ made the following findings:
The court may only reverse a finding of the Commissioner if it is not supported by substantial evidence. 42 U.S.C. § 405(g). "This does not relieve the court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial evidence supports each essential administrative finding." Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir.1980)). However, the court "abstains from reweighing the evidence or substituting its own judgment for that of the [Commissioner]." Id. (citation omitted).
Mr. Leslie urges this court to reverse the Commissioner's decision to deny his benefits on four grounds: first, he argues that the ALJ failed to properly evaluate his condition under Listing 12.05(C); second, that the ALJ improperly discounted Dr. Saxon's opinion in determining his RFC; third, that the ALJ improperly evaluated his subjective testimony about his level of pain; and fourth, that the ALJ's determination of his RFC was based on a hypothetical question with faulty premises. (Doc. 11 at 13).
To meet a Listing,
Those portions of Listing 12.05 that are relevant to Mr. Leslie's appeal provide as follows:
20 C.F.R. § 404, Subpart P, Appendix 1, § 12.05.
Subpart A of § 12.00 similarly describes the framework for evaluating a Listing claim premised upon intellectual disability:
20 C.F.R. § 404, Subpart P, Appendix 1, § 12.00A.
As the Eleventh Circuit has summarized: "[t]o be considered for disability benefits under section 12.05, a claimant must at least (1) have significantly subaverage general intellectual functioning; (2) have deficits in adaptive behavior; and (3) have manifested deficits in adaptive behavior before age 22." Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.1997). Further, the court may look to more than one portion of the record when determining whether the claimant meets the Listing. See Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.1992) (acknowledging that a valid I.Q. score need not be conclusive of intellectual disability, when the I.Q. score is inconsistent with the other evidence in the record concerning the claimant's daily activities and behavior).
Generally, "the claimant meets the criteria for presumptive disability under ... section 12.05(C) when the claimant presents a valid I.Q. score of 60 through 70 inclusive, and when the claimant presents evidence of an additional mental or physical impairment significantly affecting claimant's ability to work." Crayton, 120 F.3d at 1219-20. The ALJ's decision never directly discusses Listing 12.05(C), but it can be inferred that the claimant does not meet a Listing,
The ALJ reviewed Mr. Leslie's disability claim only under Listing 12.06, not Listing
The Eleventh Circuit "has recognized that a valid I.Q. score need not be conclusive of [intellectual disability] where the I.Q. score is inconsistent with other evidence in the record of the claimant's daily activities and behavior." Lowery, 979 F.2d at 837 (citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir.1986)). For example, consideration of other evidence-such as a claimant's daily activities, atypical behavior, and educational achievements-is appropriate. See Popp, 779 F.2d at 1499 ("Moreover, the test results must be examined to assure consistency with daily activities and behavior."); id. ("Thus, in the instant case, it was proper for the ALJ to examine the other evidence in the record in determining whether Popp was in fact [intellectually disabled].").
However, while the ALJ is not required to accept the results of an I.Q. test as reported by an expert, the ALJ "cannot act as both judge and physician." See Durham v. Apfel, 34 F.Supp.2d 1373, 1380 (N.D.Ga.1998) (citing Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir.1992)). Put differently, substantial evidence must support the ALJ's discounting of an I.Q. score that is favorable to a claimant.
Dr. Saxon administered the Wechsler Adult Intelligence Scale-4th Edition ("WAIS") to Mr. Leslie, who earned a full-scale I.Q. score of 65. Tr. 34, 352. Therefore, Mr. Leslie's score falls squarely within the range of Listing 12.05(C). See Popp, 779 F.2d at 1499. Nothing in the record suggests that Mr. Leslie manipulated his score. See Tr. 352 ("his effort seemed to be quite genuine"). The ALJ reports this I.Q. score and never disputes it. Tr. 34. Though she later gives little weight to Dr. Saxon's opinions (Tr. 35), that discounting is in regard to the RFC analysis in step four, not as applied to the I.Q. test. Further, to the extent that the reason given by the ALJ to discount Dr. Saxon's RFC opinion-his lack of access to Mr. Leslie's medical record-could, by itself, be a valid reason for rejecting Mr. Leslie's I.Q. results, cf. Frame v. Comm'r, Soc. Sec. Admin., 596 Fed.Appx. 908, 913 (11th Cir. 2015) (questioning whether discounting I.Q. score solely upon a narrative report that omits any comment about test's validity may not be sustainable on appeal), the court would be improperly speculating about the ALJ's assessment of Mr. Leslie's I.Q. score if it affirmed on that basis. See Lowery, 979 F.2d at 837 (remanding partly because basis for rejecting Listing 12.05(C) was unclear).
While the Commissioner's brief correctly points out that an ALJ can appropriately consider a claimant's work history and daily activities in order to dispute a dubious I.Q. outcome, in the absence of such analysis
Further, the ALJ's omission of 12.05(C) cannot be defended by arguing that Mr. Leslie's intellectual disability — if he has one — did not initiate before age 22. In the Eleventh Circuit, a person's I.Q. is presumed to remain constant throughout life, so "[a] valid I.Q. test meeting the Listing criteria creates a rebuttable presumption that the condition manifested itself before age twenty-two." Jones v. Astrue, 494 F.Supp.2d 1284, 1287 (N.D.Ala. 2007) (citing Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir.2001)).
Against this backdrop, Mr. Leslie benefits from the rebuttable presumption relating to the diagnostic requirement of Listing 12.05 because there is no evidence of a sudden occurrence that resulted in his alleged intellectual deficits. Similarly, nothing in the ALJ's decision adequately explains why Mr. Leslie is not entitled to benefit from this rebuttable presumption.
Though the Commissioner's arguments that Mr. Leslie does not meet Listing 12.05 may, on remand, have merit, acceptance of such post hoc rationalizations that go substantially beyond the contents of the ALJ's opinion infringes upon the court's "function ... to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts." Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.1984); cf. id. ("We are likewise unable to dispose of the waiver issue because of the incompleteness of the ALJ's [credibility] findings.").
Furthermore, nothing in the Commissioner's brief brings into question the foregoing discussion of Lowery, Popp, and other legal authorities favorable to Mr. Leslie. The Commissioner's brief (Doc. 12 at 8) points to § 12.00, the heading for mental disorders, which states that "since the results of intelligence tests are only part of the overall assessment, 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." Id. (citing 20 C.F.R. § Pt. 404, subpt. P, app. 1.) The Commissioner argues that since Dr. Saxon did not have access to Mr. Leslie's complete medical report, he cannot provide such a narrative. (Doc. 12 at 8). For several
First, Dr. Saxon did provide a written evaluation of the I.Q. test. Tr. 352. Second, the ALJ's reference to the I.Q. score raises no concerns about how the test was administered or the contents of the narrative report that accompanied it. Tr. 34. Third, an unpublished Eleventh Circuit opinion, which the undersigned finds to be persuasive, indicates that even if the narrative portion were lacking, it is unlikely that the ALJ could reject Mr. Leslie's verbal I.Q. score on this basis alone. See Frame, 596 Fed.Appx. at 913 ("[T]he regulations make clear that the narrative report that accompanies the test results should comment on whether the IQ scores are considered valid .... [but] it is unlikely that the ALJ could reject Frame's verbal IQ score on this basis alone.") (internal quotations omitted) (citing 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00D6a).
The Commissioner also points to several pieces of evidence that the ALJ considered when formulating Mr. Leslie's RFC in an effort to show that the ALJ implicitly discredited the validity of Mr. Leslie's I.Q. score. This evidence includes Mr. Leslie's past employment history, personal grooming abilities, and time spent watching television. (Doc. 12 at 8-14). The Commissioner attempts to use this evidence-with numerous references to unpublished opinions — to show that the ALJ's decision would have been supported by substantial evidence had she expressly disregarded Mr. Leslie's I.Q. result or found that he did not satisfy the criteria for intellectual disability under Listing 12.05. However, it is not enough to say that "some rationale might have supported the ALJ's conclusion," Owens, 748 F.2d at 1516 (declining to affirm on basis of Appeals Council's post hoc explanation in support of ALJ's disability determination), especially when the ALJ's decision here failed to even acknowledge Listing 12.05, much less address the validity of Mr. Leslie's I.Q. result. Cf. Owens, 748 F.2d at 1515 ("[The ALJ's] articulation of the standard being applied was ambiguous at best, and suggests if anything that he in fact had an incorrect view of the Appeals Council's policy on joint bank accounts."); id. ("Even more serious was the ALJ's failure to make any finding at all on the credibility of the testimony relating to this issue."). The ALJ simply did not use any of this evidence in evaluating the proper Listing or discounting the I.Q. outcome and, thus, committed a reversible error.
The Commissioner cites Perkins to illustrate the types of information, in addition to an I.Q. result, that are relevant to evaluating a claimant's satisfaction under Listing 12.05. Perkins v. Comm'r, Soc. Sec. Admin., 553 Fed.Appx. 870 (11th Cir. 2014). Besides being an unpublished, non-binding opinion, Perkins is significantly distinguishable. Importantly, because the ALJ in Perkins directly addressed the credibility of the claimant's I.Q. scores, 553 Fed.Appx. at 873, there was no legal error, unlike the present case. The same distinguishing factor applies to several other potentially persuasive opinions upon which the Commissioner relies.
The Commissioner also emphasizes that Dr. Leonard-a paper review doctor —
12.05(C)'s second prong-as interpreted by the Eleventh Circuit in Crayton — requires an "additional and significant work-related limitation of function." An impairment imposes significant limitations when its effect on a claimant's ability to perform "basic work activities" is more than slight or minimal. Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir.1985). A significant impairment can be less than the "severe impairment" found in step two under § 404.1520(c). Heckler, 755 F.2d at 1515.
At step two, the ALJ found that Mr. Leslie suffered from several "severe" impairments: hypertension, plantar faciitis with bone spurs, panic disorder with agoraphobia, and peripheral neuropathy. Tr. 28. Since "severe" is more limiting in degree than "significant," the ALJ's findings support an implicit conclusion that Mr. Leslie has an "additional and significant work-related limitation of function."
Therefore, on this record, no inference exists that Mr. Leslie would not meet Listing 12.05(C)
The court elects not to address Mr. Leslie's three remaining RFC-related issues as they may be rendered moot by further proceedings consistent with the Listing 12.05(C) remand. Once a claimant meets a Listing, no further inquiry is required. See Pope, 998 F.2d at 477 ("[A claimant] will automatically be found disabled if [he] suffers from a listed impairment.").
The ALJ correctly found that Mr. Leslie has satisfied steps one and two of the five-step sequential evaluation process. However, under step three, the ALJ failed to follow the proper legal framework for determining whether Mr. Leslie was disabled under subpart C of Listing 12.05.
Therefore, based upon the court's evaluation of the evidence in the record and the submissions of the parties, this court finds that the Commissioner's final decision is due to be reversed and remanded for further proceedings consistent with this memorandum opinion. Accordingly, the decision of the Commissioner will be remanded by separate order.