HARWELL G. DAVIS, III, Magistrate Judge.
Plaintiff Kelly Diane Willard ("Willard") seeks review, pursuant to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for Supplemental Security Income ("SSI"). Willard timely pursued and exhausted her administrative remedies. The case is therefore ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully considered the record and, for the reasons stated below, the Commissioner's decision is AFFIRMED.
Willard was a 33-year-old female at the time of her hearing before the Administrative Law Judge ("ALJ") on November 22, 2010. (Tr. 38, 125). Willard has a sixth-grade education. (Tr. 30). Willard has past relevant work as a bartender and a waitress, (Tr. 52), but her earning records demonstrate she has never performed work at the substantial gainful activity level. (Tr. at 135-36).
Willard filed an application for SSI on August 24, 2009. (Tr. 125-31). The State Agency denied Willard's application, and Willard requested a hearing before an ALJ. (Tr. 83-84). After a hearing, the ALJ denied Willard's claim on January 14, 2011. (Tr. 31). Willard sought review by the Appeals Council, but it declined her request on August 10, 2012. (Tr. 1-6). On that date, the ALJ's decision became the final decision of the Commissioner. Willard then initiated this action on October 5, 2012. (Doc. 1).
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. See Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This 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) (citations omitted). This court will determine the ALJ's decision is supported by substantial evidence if it finds "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. Substantial evidence is "more than a scintilla, but less than a preponderance." Id. Factual findings that are supported by substantial evidence must be upheld by the court. The ALJ's legal conclusions, however, are reviewed 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 the proper legal analysis has been conducted, the ALJ's decision must be reversed. See Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To qualify for SSI, as well as establish 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. § 416.920(a)(4)(i-v). The Commissioner must determine in sequence:
See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). "Once the claimant has satisfied steps on and two, [she] will automatically be found disabled if [she] suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform [her] work, the burden shifts to the Secretary to show that the claimant can perform some other job." Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993), overruled in part on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999); 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. Foote, 67 F.3d at 1559.
At Step One, the ALJ found Willard has not engaged in substantial gainful activity since the application date. (Tr. 26). At Step Two, the ALJ found Willard had the following severe impairment: mild mental retardation. (Id.). At Step Three, the ALJ found Willard does not have an impairment or a combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 27).
Before proceeding to Step Four, the ALJ determined Willard's residual functioning capacity ("RFC"), which is the most a claimant can still do despite her impairments. See 20 C.F.R. § 404.1545(a)(1). The ALJ determined Willard has the RFC to perform a full range of work at all exertion levels, but with the following non-exertional limitations: she is capable of understanding, remembering, and carrying out short, simple 1-2 step tasks; she is able to perform said work under casual supervision; she functions best within her own work area or station and is able to complete tasks in a timely manner as long as she does not have excessive workloads or rapid work changes; she is able to interact casually with the general public as long as the interaction is non-confrontational; she is likely to miss one or two days [of work] per month. (Tr. 29).
At Step Four, the ALJ determined Willard is unable to perform her past relevant work of bartender and waitress because these jobs required "mental demands" beyond Willard's RFC. (Tr. 30). At Step Five, the ALJ determined, based on Willard's age, education, work experience, and RFC, that jobs exist in significant numbers in the national economy Willard can perform. (Tr. 30-31). Therefore, the ALJ determined Willard is not disabled and denied her claim. (Tr. 31).
This court is limited in its review of the Commissioner's decision in that the Commissioner's findings of fact must be reviewed with deference. See Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen, 790 F.2d 1572, 1574-75 (11th Cir. 1986)). In contrast to factual findings, the Commissioner's conclusions of law are subject to an "exacting examination" or de novo review. See Martin, 894 F.2d at 1529 (citing Graham, 790 F.2d at 1574-75) ("The Secretary's failure to apply the correct legal standards or to provide the reviewing court with sufficient basis for a determination that proper legal principles have been followed mandates reversal.") (citations omitted). In particular, this court has a "responsibility to scrutinize the record in its entirety to ascertain whether substantial evidence supports each essential administrative finding." See Walden v. Schweiker, 672 F.2d 835, 838(11th Cir. 1982) (emphasis added) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)).
Willard contends the ALJ failed to properly consider the mental retardation listing. (Doc. 8 at 5). Specifically, Willard argues the ALJ improperly evaluated her mental and physical impairments in combination in finding she did not meet or exceed Listing 12.05(C), insisting the ALJ's decision is not supported by substantial evidence and based on a misapplication of Listing 12.05(C). (Id.).
At Step Two, the ALJ found Willard had the following severe impairment: mild mental retardation. (Tr. 26). At Step Three, the ALJ found this severe impairment, along with Willard's other impairments — depression, anxiety, Gastroespohageal ("GERD"), and "bad feet,"— did not meet or medically equal a listed impairment, specifically listing 12.05 "Intellectual Disability." (Tr. 27). Contrary to her contentions, the ALJ properly evaluated the severity of Willard's alleged impairments in combination.
The structure of the listing for mental retardation is different from the structure of other mental disorder listings. To meet Listing § 12.05, the claimant must satisfy the requirements of the introductory paragraph contained in Listing § 12.05, which defines "mental retardation" as
Listing 12.05.
The claimant's impairment or impairments must also satisfy one of the four sets of criteria in subparagraph A through D to meet the listing and be presumptively "disabled." Here, the ALJ found Willard's impairments did not meet and were not medically equal to any of the subparagraphs in Listing 12.05 and, therefore, she was not presumptively disabled. (Tr. 27-29).
Willard argues the ALJ erred in her analysis and her conclusion she did not meet the criteria contained in Listing § 12.05(C).
In support of her argument, Willard cites Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985), in which the Eleventh Circuit reviewed a previous version of this regulation and interpreted the second part of Listing 12.05(C) as requiring something that was "significant" but less than a "severe impairment" as defined by Step 2 of the sequential evaluation process. Notably, as pointed out in several cases within this Circuit, this regulation was modified in 2000 and the introductory paragraph to Listing 12.00 now equates this criterion with a "severe" impairment as intended at Step 2 and governed by 20 C.F.R. §§ 404.1520(c), 416.920(c). See Black v. Astrue, 678 F.Supp.2d 1250, 1262-63 (N.D. Fla. 2010); Carroll v. Astrue, No. 1:08-cv-74-SRW, 2009 WL 1708073, at *1 (M.D. Ala. June 17, 2009). As it has been superseded by regulation, Edwards is no longer good law on this point.
The current regulation states:
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1200A. The Federal Register explains the reason for the change as follows:
65 Fed. Reg. 50746, 50772-73 (Aug. 21, 2000). Accordingly, the second prong in Listing 12.05(C) now requires evidence of an additional severe impairment.
Willard argues her impairments of depressive disorder and anxiety disorder satisfy the second prong of Listing 12.05(C). (See Doc. 8 at 5-6). The ALJ found these impairments to be "not severe" and, therefore, concluded Willard did not meet the 12.05(C) Listing. (Tr. 26, 28). Additionally, the ALJ found Willard's GERD and "bad feet" were not severe because they did not functionally interfere with her ability to do work. (Id.). Despite Willard's contentions, these findings are supported by substantial evidence.
A severe impairment significantly limits an individual's physical or mental ability to perform basic work activities. 20 C.F.R. §§ 416.920(c) and 416921(a). Basic work activities are the abilities and aptitudes necessary to do most jobs, including (1) physical functions such as walking, standing, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b). An impairment can be considered non-severe only if it is a slight abnormality which has such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience. Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).
With respect to Willard's allegations of depression and anxiety, the ALJ noted the evidence showed, although Willard had complained of symptoms to a general practitioner, she had not been referred to or received specialized mental health treatment.
Willard contends the ALJ failed to properly consider the October 27, 2009, consultative examination performed by Dr. Rogers. (Doc. 8 at 9-10). To the contrary, the ALJ extensively discussed Dr. Roger's report in her analysis of Listing 12.05, relying on it to conclude Willard had a qualifying IQ score. (Tr. 27-28). Although Dr. Rogers diagnosed moderate anxiety and depression, these diagnoses alone do not indicate the severity of the condition. See Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005) ("the mere existence of these impairments does not reveal the extent to which they limit [the claimant's] ability to work or undermine the ALJ's determination in that regard".). Dr. Rogers appeared to rely on mostly Willard's self-reported symptoms. (Tr. 261). His objective clinical findings consisted of a mental status exam in which he found, while affect was restricted, with anxious and depressed mood, Willard's appearance and mannerisms were unremarkable, conversation was normal, thought process was normal, the memory test was unremarkable, and insight and judgment were fair. (Tr. 263-64). She could not interpret proverbs, perform serial 7s subtraction task, or spell "world" backward; and expressed having heard and seen things others could not. (Tr. 263-64). Dr. Rogers assessed the extent of Willard's mental impairments as "moderate" and assessed her ability to do certain basic mental work activities of understanding, remembering, carrying out instructions, and responding appropriately to supervision, co-workers, and work pressures in a work setting as "moderately impaired." (Tr. 266-67). Dr. Rogers did not specifically attribute these limitations to Willard's depression or anxiety, as opposed to the severe impairment found — mild mental retardation. (Id.).
Additionally, the ALJ assessed Willard's additional impairments for severity. As to Willard's GERD, the ALJ noted medical records did not indicate any acute problems, and Willard was regularly prescribed Prilosec without any complaints of side effects or ongoing problems. (Tr. 293, 298, 300, 302). Willard reported medication controlled her acid reflux and she had no symptoms. (Tr. 239). Regarding her complaints of "bad feet," the ALJ discussed medical records indicating Willard was diagnosed with misalignment and deformity of certain foot bones in April 2009 and underwent surgery, which successfully removed bone. (Tr. 26, 246, 249-50). Two weeks post-surgery, Willard reported being able to stand "a lot." (Tr. 27, 250). At a follow-up appointment in June 2009, Willard reported significant improvement and, despite her feet hurting every now and then, she generally was doing ok. (Tr. 27, 245). On July 20, 2009, Willard had no complaints, there were no signs of infection, and she was fitted for a pair of orthotics. (Tr. 244). While Willard's feet may cause her occasional discomfort, the successful nature of the surgery and her recovery, in combination with the prescribed orthotic shoes, indicate her level of pain and associated limitations have been decreased to a degree that does not functionally affect her ability to perform basic work activities. (Tr. 27, 243-44, 250).
The ALJ evaluated the evidence of record and properly determined Willard failed to carry her burden to show she had any impairment in addition to mild mental retardation imposing any additional and significant limitations on her ability to perform basic work activities.
Because the Commissioner's decision is based on substantial evidence and the ALJ applied proper legal standards, it is AFFIRMED and this action will be DISMISSED WITH PREJUDICE. A separate order will be entered.
