GREGORY J. KELLY, Magistrate Judge.
Michael Wayne Bush (the "Claimant"), appeals to the district court from a final decision of the Commissioner of Social Security (the "Commissioner") denying his application Supplemental Security Income ("SSI"). Doc. No. 1; R. 296-98. The Claimant alleges an onset of disability as of August 1, 1995, primarily due to a learning disability and asthma. R. 98, 105, 268-98. The Claimant argues that the Administrative Law Judge (the "ALJ") erred by determining the Claimant's intellectual disability did not meet or equal the severity requirements of Listing 12.05B because Claimant did not have "a valid verbal, performance, or full scale IQ of 59 or less." Doc. No. 8 a 19 at 7-12 (quoting R. 18).
Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520(a). In Doughty v. Apfel, 245 F.3d 1274 (11th Cir. 2001), the Eleventh Circuit explained the five-step sequential evaluation process as follows:
Id. at 1278 (citations omitted). The steps are followed in order. If it is determined that the claimant is not disabled at a step of the evaluation process, the evaluation will not go on to the next step.
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
Where the Commissioner's decision is supported by substantial evidence, the District Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The District Court "`may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'" See Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
As set forth above, Claimant argues that the ALJ erred by finding at step-three of the sequential evaluation process that Claimant's impairments do not meet or equal the severity requirements of Listing 12.05B because the ALJ erroneously determined that Claimant does not have a valid IQ score of 59 or less. Doc. No. 19 at 8-12. The Commissioner maintains that the ALJ applied the correct legal standards at step-three and that the ALJ's findings are supported by substantial evidence. Doc. No. 19 at 12-15. The Commissioner also implicitly argues that any error by the ALJ is harmless because Claimant did not meet his burden under Listing 12.05B to demonstrate that he manifested deficits in adaptive behavior prior to age 22. Doc. No. 19 at 14-15.
At step three of the ALJ's sequential analysis, the ALJ must consider whether a claimant's impairments, individually or in combination, meet or equal any of the impairments contained in the Listing of Impairments (the "Listings"). The Listings identify impairments, which are considered severe enough to prevent a person from engaging in gainful activity. 20 C.F.R. § 404.1525(a). By meeting a listed impairment or otherwise establishing an equivalence, a claimant is presumptively determined to be disabled regardless of his age, education, or work experience. Id. Thus, an ALJ's sequential evaluation of a claim ends if the claimant can establish the existence of a listed impairment. Edwards v. Heckler, 736 F.2d 625, 628 (11th Cir. 1984).
If the claimant contends that an impairment meets a listing, as he does here (Doc. No. 19 at 7-12), the claimant bears the burden of "present[ing] specific medical findings that meet the various tests listed under the description of the applicable impairment." Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (per curiam). In doing so, the claimant must have a diagnosed condition that is included in the Listings. Id. Diagnosis of a listed impairment, however, is not enough, as the claimant must also provide objective medical reports documenting that his or her impairment meets the specific criteria of the applicable listing. Id.; accord Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam).
Listing 12.05B, which is contained 20 C.F.R. Part 404, Subpart P., Appendix 1 (2012) provides, in pertinent part, that a claimant is disabled if he or she meets the following criteria:
Id.
The introductory paragraphs to Listings 12.00, explain that Listing 12.05 is different from the other mental disorder listings, in the following respects:
See 20 C.F.R. Part 404, Subpart P., Appendix 1 § 12.00 A. (2012) (emphasis added). Thus, the regulations provide that if a claimant meets the diagnostic criteria of the introductory paragraph of Listing 12.05B and meets the requirements of Paragraph B, the Commissioner will consider the claimant's intellectual disability "severe enough to prevent [the claimant from] doing any gainful activity without additional assessment of functional limitations." Id.
With respect to determining the validity of IQ scores, the regulations provide that there must be documentary evidence from an acceptable medical source, which means a licensed psychiatrist, psychologist, or physician. See 20 C.F.R. Part 404, Subpart P., Appendix 1 § 12.00 D(1)(a) (2012) (citing 20 C.F.R. §§ 404.1513 and 416.913). See also Giles v. Barnhart, 182 F.Supp.2d 1195, 1199 (M.D. Ala. Jan. 28, 2002) (IQ tests conducted by an individuals who are not acceptable medical sources are entitled to little evidentiary weight). With respect to standardized intelligence tests, the regulations further provide that they "are essential to the adjudication of all cases of [intellectual disability] not covered under the provisions of 12.05A," and "
At step-three, the ALJ correctly described the requirements a claimant must meet in order to meet or equal a listing under 12.05B. R. 17-18. With respect to Listing 12.05B, the ALJ found as follows:
R. 18 (emphasis added).
Dr. Oatley is a psychologist. R. 444. At the Commissioner's request, on October 9, 2008, Dr. Oatley performed a consultative psychological evaluation of Claimant. R. 444. Claimant, who was twenty-eight years old at the time of the evaluation, appeared with his mother. R. 444. Dr. Oatley noted that Claimant appeared cognitively limited, but Claimant was able to write his own name "rapidly and accurately." R. 444. Dr. Oatley did not review any medical records, but did review educational records, which showed that Claimant was classified as "Educable Mentally Handicapped and had goals that were to improve spelling, independent living skills, and dealing with conflicts." R. 444.
Dr. Oatley's mental status examination revealed that Claimant had normal mood and affect, behavior, and no hallucinations. R. 445-446. Dr. Oatley's other findings are as follows:
R. 445. Dr. Oatley administered the Wechsler Adult Intelligence Scale III, which resulted in the following IQ scores: Verbal IQ 55; Performance IQ 53; Full Scale IQ 50; Working Memory 50. R. 446. Dr. Oatley opined: "Testing appears valid as [Claimant] was cooperative and showed adequate concentration. He showed no significant patterns in his test scores." R. 446.
Dr. Oatley diagnosed Claimant with
In Popp v. Heckler, 779 F.2d 1497, 1498-99 (11th Cir. 1986), the claimant had an IQ score of 69. Id. The ALJ found the IQ score to be incredible and, therefore, not valid. Id. Citing and quoting a prior version of the regulations, the Eleventh Circuit found that "Listing 12.00B4 does not require the Secretary to make a finding of [intellectual disability] based on the results of an IQ test alone." Popp, 779 F.2d at 1499.
Popp, 779 F.2d at 1499 (emphasis added). The Eleventh Circuit found that because Popp taught high school algebra, was close to obtaining a bachelor's of science degree, and had obtained an associates degree, substantial evidence supported the ALJ's decision to reject the IQ score and find Popp not intellectually disabled. Id. at 1499-1500.
In Rodriguez v. Comm'r of Soc. Sec., ___ F. App'x ___, 2015 WL 9583485, at *1 (11th Cir. Dec. 31, 2015) (unpublished), the claimant argued that the ALJ erred at step-three by failing to find the claimant met the requirements of Listing 12.05(B) and (C). Id. The Eleventh Circuit found 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 on the claimant's daily activities and behavior.'" Id. (quoting Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)). Thus, the Eleventh Circuit found it permissible for the ALJ to rely upon the claimant's daily activities and work history to reject the results of an IQ score. Id. at *2. The Court further determined such findings may be made implicitly in the ALJ's decision. Id. Ultimately, the Eleventh Circuit found that ALJ's implicit determination was supported by substantial evidence because the claimant had attended mainstream high school through the eleventh grade without specialized education classes, the claimant assisted his wife in household chores, he did the grocery shopping for the family, and he had maintained a lengthy work history, which included skilled and semi-skilled jobs. Id. at *2-3.
In this case, the ALJ's determinations that the Claimant has a mild intellectual disability and did not have a valid IQ score are not supported by substantial evidence. In his opinion, Dr. Oatley noted that he was unable to gather an accurate history of the Claimant's present illness, but Dr. Oatley reviewed educational records and compared Claimant's test results with Claimant's activities of daily living and adaptive behavior. R. 444-46. Based on the Claimant's test results, activities of daily living and adaptive behavior, Dr. Oatley opined that the Claimant has a moderate intellectual disability and the standardized testing results were valid. R. 444-46. Dr. Oatley's opinion complies with the regulations, which require that standardized testing be conducted by an acceptable medical source and that the narrative accompanying the test results comment "on whether the IQ scores are considered valid and consistent with the developmental history and the degree of functional limitation." 20 C.F.R. Part 404, Subpart P, Appendix 1 §§ 12.00 D(1)(a) and (6)(a) (2012). The record in this case contains no other standardized testing results from an acceptable medical source. But see R. 435.
As set forth above, the ALJ determined Claimant had a mild intellectual disability and Claimant's the IQ scores were not valid based on the Claimant's activities daily living. R. 17-18. Thus, the ALJ's findings conflict with Dr. Oatley's opinions. Yet, the ALJ's decision does not explain why the ALJ's own consideration of largely the same activities of daily living outweighs the opinions of an acceptable medical source with respect to the validity of the IQ scores or even, more generally, Dr. Oatley's diagnosis of moderate intellectual disability. See Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (ALJ may not substitute own judgment of the claimant's condition for that of the medical experts); Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir. 1992) (Johnson, J., concurring) (an ALJ "may not arbitrarily substitute his own hunch or intuition for the diagnosis of a medical professional."); Durham v. Apfel, 34 F.Supp.2d 1373, 1381 (N.D. Ga. 1998) (finding ALJ's rejection of claimant's IQ scores amounted to impermissible substitution of the ALJ's "unsupported opinion about [intellectual disability]" where administering physician considered claimant's activities of daily living but did not find them inconsistent the IQ scores). Moreover, the Claimant's activities of daily living and employment background are far more restricted than those of the claimants in Popp, 779 F.2d at 1499-1500, and Rodriguez, ___ F. App'x ___, 2015 WL 9583485, at *2-3, who, respectively, had histories of teaching algebra and holding skilled employment. R. 18, 44-47; see also Durham, 34 F. Supp. 2d at 1380-81 (finding ALJ's rejection of IQ scores not supported by substantial evidence, in part, because claimant's activities of daily living and work history were so distinguishable from those of Popp). Here, the Claimant has never worked and it is wholly unclear how the Claimant's minimal ability to make purchases at a store, watch television, take care of his own personal hygiene, perform some household chores, talk to his friends, and go get his hair cut are inconsistent with or affect the validity of Claimant's IQ scores or Dr. Oatley's opinion as to the same. R. 18. Accordingly, on this record, the Court finds that the ALJ's step-three findings are not supported by substantial evidence, warranting reversal.
Claimant requests remand for an award of benefits. Doc. No. 19 at 17-18. Reversal for an award of benefits is only appropriate either where the Commissioner has already considered the essential evidence and it establishes disability beyond a doubt, or where the Claimant has suffered an injustice. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (disability beyond a doubt warrants award of benefits); Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982) (injustice warrants award of benefits). In this case, the ALJ's findings with respect to the validity of Claimant's IQ scores are not supported by substantial evidence. However, the ALJ did not address whether Claimant met "the diagnostic description in the introductory paragraph," which requires a claimant to: "(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). R. 18. The ALJ solely addressed the validity of Claimant's IQ scores. R. 18. While a valid IQ score gives rise to the presumption that a claimant satisfies the diagnostic requirements of the introductory paragraph, the Commissioner may rebut that presumption. See Hodges v. Barnhart, 276 F.3d 1265, 1266-67 (11th Cir. 2001). Accordingly, on this record, the Court finds that a remand for further proceedings is appropriate. See Durham, 34 F. Supp. 2d at 1381-82 (remanding for further proceedings where ALJ's finding IQ scores not valid was not supported by substantial evidence).
For the reasons stated above, it is
Rodriguez v. Comm'r of Soc. Sec., No. 15-12356, 2015 WL 9583485, at *2 (11th Cir. Dec. 31, 2015). Thus, the Court will also follow the agency's new nomenclature.
Id. (reversing to ALJ for determination of whether there is substantial evidence to rebut the presumption of [intellectual disability] prior to the age of 22). Thus, with respect to the first element of Listing 12.05B, i.e, that the claimant has "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested" prior to the age of 22, a claimant presumptively satisfies that element if the claimant presents evidence of valid low IQ results after attaining the age of 22. Id. Here, the ALJ never addressed whether Claimant met the diagnostic requirements of the introductory paragraph of Listing 12.05B, but based his findings at step-three solely on the validity of Claimant's IQ scores. R. 18.
Popp, 77 F.2d at 1499 (emphasis added) (quoting Listing 12.00B4). Listing 12.00B4 no longer exists, and the current regulations are quoted supra at pp. 5-6.
