G.R. SMITH, Magistrate Judge.
Alleging that she suffers from seizures and from an intellectual disability, April Loccara Brown Carter seeks judicial review of the Social Security Administration (SSA) Commissioner's denial of her application for Disability Insurance benefits (DIB), and Supplemental Security Income (SSI). She testified at an administrative-review hearing before an Administrative Law Judge (ALJ) and unsuccessfully appealed an adverse ruling to the SSA's Appeals Council. Doc. 6-2 at 2.
In social security cases, courts
Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).
The burden of proving disability lies with the claimant. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). In response to the showing the claimant makes, the ALJ applies
Stone v. Comm'r. of Soc. Sec. Admin., 596 F. App'x, 878, 879 (11th Cir. 2015) (footnotes added).
Carter was 25 years old as of her alleged disability date, September 1, 2010. Doc. 6-2 at 17. She repeated kindergarten and was first evaluated in the first grade (1993) yielding "a Verbal Scale IQ of 72, a Performance Scale IQ of 70, and a Full Scale IQ of 69." Id. at 2. She was ineligible for special education until the third grade. Id. By age 15 (in 2001), Carter fell below average in reading, math, and language, with a Verbal IQ of 62, a Performance IQ of 59, and a Full Scale IQ of 56. Id. at 3 (Feb. 9, 2001 school psychological report). Plaintiff ultimately received a special education diploma and did not attend any trade or other schools afterwards. Id. at 35-36.
The ALJ's ruling did not expressly note the IQ scores in the record but did note the 2001 school records reflecting some of them. Doc. 6-2 at 19 (citing "Exhibit 1F"). Too, he considered a 2007 psychological consultation by Arthur W. Hartzell, Ph.D. Id. at 20 (citing doc. 6-8 at 21). Hartzell measured Carter's IQ (she then was 22), and noted a Verbal IQ of 68, performance IQ of 76, and a full scale IQ of 69. Doc. 6-8 at 24; see also id. ("Her Full Scale IQ of 69 indicates that she functions in the extremely low classification of intelligence overall and at about the second percentile of intelligence as compared to other women her age.") (emphasis original).
Carter testified that she worked "off and on" over the years: five years at Goodwill, and she also "cut fiberglass and [aircraft] skin tape for Gulfstream." Id. at 37. Other jobs included fast-food cashier and food preparer, but she was let go because "I used to have seizures, and they said they couldn't no longer risk me trying to stew
Carter claims that she suffers daily from seizure-caused headaches but that she has not been able to travel to get evaluated. Id. at 41-42; see also id. at 57 (on follow-up questioning by her attorney, she testified that "I have them probably, like, six times out of the month."); id. ("I left [employment at a fast-food vendor] KFC because of that.").
Plaintiff got married in 2012. Doc. 6-2 at 35-36. She and her husband live with her parents in their home. Id. at 37. She has no driver's license — she has repeatedly failed the written exam — and traveled by bus to the hearing. Id. at 36. Plaintiff helps her mother with housework and laundry, and sometimes cooking. Id. at 42. She does not know how to do yard work or gardening, so she does not help out there. Id. She does not attend church because she is a Jehovah's Witness, and she owns no computer. Id. at 42-43. She did have a smart phone and a Facebook page, but both are now things of the past. Id. at 43. However, she does visit the library to use its computer. Id.
Carter helps her daughter with her homework "the best way I know how," and sometimes does crossword puzzles with her. Doc. 6-2 at 43. And, she likes to fish. Id. She grocery shops and can cook simple meals. Id. at 43-44; see also id. at 57 ("I can cook from scratch."). She used to have a checking account, endures no problems bathing or dressing, can use the telephone and mail letters. However, she claims that she cannot perform a cashier's job "because I'm not good at money like that. . . ." Id. at 44. She is able, nevertheless, to make change from a dollar, and she shops with her husband for her daughter's clothes. Id. at 45.
While questioned by her attorney, she stated that she had difficulty grasping and remembering basic job requirements, and that job supervisors were not pleased with her comprehension/retention capabilities. Doc. 6-2 at 55. Also, she does not feel competent enough to live on her own. Id. at 56. She cited reading and comprehension deficits. Id. at 56-57.
The ALJ posed a hypothetical question to a Vocational Expert (VE). Doc. 6-2 at 60. It was premised on one "[w]ho could do light exertional work, no higher than [a specific vocational preparation level 2]; simple, routine; should have no more than occasional changes in kind of work is done; no detailed instructions; should not work at heights; should not work around war hazards; should not work around hazardous machinery. Would there be positions?" Doc. 6-2 at 60. The YE opined that work like that of "small products assembler," "hand packer," and "fast food cashier position" would fit that capability profile. Id. at 60-61.
Applying the five-step sequential evaluation process, doc. 6-2 at 19-25, the ALJ found that Carter had not engaged in substantial gainful activity since September 1, 2010, and suffers from severe impairments of intellectual disability, learning disability, and non-epileptic seizures. Id. at 19. However, she does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. pt. 404, Subpt. P, App. 1. Id. at 20-21.
He next found that plaintiff has the RFC for light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except she is limited to simple, routine work, with occasional changes and she must avoid hazards "such as heights and moving machinery." Id. at 22. While her RFC would not allow her to perform her past relevant work, id. at 23, her RFC, age, education, and work experience would allow her to perform other work that existed in significant numbers — the VE's cited jobs. Id. at 23-24. Accordingly, he found that she is not disabled. Id. at 24-25.
Carter argues that the Court should reverse the Commissioner's decision because the ALJ failed to find that she meets Listing 12.05, Intellectual disability — something that, if found, would compel a disability conclusion. Doc. 8 at 4-9. Hence, she challenges step three of the sequential evaluation process. To meet Listing 12.05,
Frame v. Comm'r, Soc. Sec. Admin., 596 F. App'x. 908, 910-911 (11th Cir. 2015) (emphasis added); see also Sullivan v. Zebley, 493 U.S. 521, 530 (1990) ("For a claimant to show that his impairment matches a listing, it must meet all of the specified" requirements—"[a]n impairment that manifests only some . . . no matter how severely, does not qualify."); Engle v. Colvin, 2014 WL 3721826 at * 11 (N.D. Ind. July 25, 2014) ("Engle's low IQ score and additional physical and mental impairments, however, are not enough by themselves to meet Listing 12.05C. He must also demonstrate significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; that is, an onset of the impairment before age twenty-two.") (emphasis added); Hill v. Colvin, 2016 WL 1230005 at * 7-8 (M.D. Ala. Mar. 29, 2016).
A sub-70 IQ score triggers a rebuttable presumption:
Frame, 596 F. App'x. at 911; Cody v. Colvin, 2015 WL 5162280 at * 3 (S.D. Ga. Sept. 2, 2015). In that regard,
SOC. SEC. DIS. L & PROC. IN FED. CT. § 5:47 (Jan. 2016). "[T]he impairment causing significant limitations need not, by itself, cause inability to engage in gainful activity." Id.
The bottom line here, then, is that Carter could meet "the criteria for presumptive disability under section 12.05(C) [by presenting] a valid IQ 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." Hill, 2016 WL 1230005 at * 8 (quotes and cites omitted; emphasis added) (citing Monroe, 504 F. App'x at 810)).
An ALJ can make findings to negate the presumption, if not rebut it. See Grant v. Astrue, 255 F. App'x 374, 375 (11th Cir. 2007); Lowery, 979 F.2d at 837; Popp, 779 F.2d at 1499 (rejecting a mental retardation, § 12.05(C) claim where the claimant's 69 I.Q. score was inconsistent with evidence that he had a two-year college associate's degree, was enrolled in a third year of college as a history major, and had worked in various technical jobs such as an administrative clerk, statistical clerk, and an algebra teacher).
Here, the ALJ tacitly conceded that Carter met Listing 12.05's IQ leg (i.e., that she consistently scored in the 60-70 range) and instead focused on Listing 12.05's adaptive-function leg. Doc. 6-2 at 21. He noted her education history, work history, ability to read, communicate, care for herself, perform household duties, and her ability to perform other daily activities when he determined that she did not have the requisite deficits in adaptive functioning. See e.g., Harris v. Comm'r of Soc. Sec., 330 F. App'x 813, 815 (11th Cir. 2009).
More specifically, he cited Carter's high school (albeit special-education tinged) degree and a ten-year work history, including one job with a five-year span, and two jobs terminated (the ALJ was authorized to find) not because of incapability, but a "misunderstanding" with her boss on one, and that she simply quit after another job's hours were cut. Doc. 6-2 at 19-23. He also noted Dr. Hartzell's 2007 examination, where he found her mood, speech and affect appropriate, with no memory problems. She tested at "borderline range of intelligence optimally," id. at 20, though she does labor under a reading disorder. Id.
For that matter, Carter denied any history of psychiatric problems or treatment for same, and she was not then taking any psychotropic medication. Doc. 6-2 at 20. Hartzell also found that "[s]he was able to interact with co-workers, supervisors, and/or the public as she was working full-time. She was able to adhere to a work schedule and to meet production normal on simple tasks in a job situation, as she was working." Id. He diagnosed her with a reading disorder, "Borderline Intellectual Functioning," and a "Global Assessment Functioning "(GAF) of 58.
The ALJ also considered the medical evidence about Carter's seizures, including the progress notes from her treating physician, Jessica Carter, M.D. Doc. 6-2 at 20. He took into account the "headache and seizure disorder" diagnosis, id., but also noted that a 2012 EEG report revealed "no epileptic form discharges or focal slowing." Put another way, claimant's "EEG was normal," and "Dr. Carter opined that there was a good chance that the claimant was having non-epileptic seizures or psychogenic seizures, depression and anxiety, and chronic headaches [cit]." Id.; see also doc. 6-9 at 45 (Dr. Carter's "May 15, 2013" report on claimant's May 9, 2013 visit, noting that her "spells that are thought to represent seizures are brought in by stress. Headache is sometimes a warning."); see also doc. 6-9 at 50 (2012-conducted, 48-hour ambulatory EEG report, "done to evaluate seizure activity," with this assessment: "There were no epileptiform discharges or focal slowing seen."); doc. 6-9 at 52 (2011 Dr. Carter report: "Her EEG in the office was normal"; "There is a good chance that she is having non-epileptic seizures of psychogenic seizures'"; "CHRONIC HEADACHES. These could be stress-induced as well."). Plaintiff's headaches, in turn, "are controlled with medication and they cause no functional limitations." Doc. 6-2 at 20. Nor, the ALJ was authorized to conclude, would they be shown to preclude the above-noted, light work.
Carter has other claimed ailments and encumbrances, and the ALJ considered them, too. While she claims to suffer from diabetes, for example, no medical evidence supports anything beyond a nonsevere classification. Doc. 6-2 at 20. The ALJ also cited plaintiff's home activities, including the fact that she helps with housework, goes to the movies, fishes, cooks meals, does crossword puzzles with her daughter, and goes to the library to use its computer. Id. at 22. "Obviously," he found, "claimant's adaptive functioning is pretty high." Id. at 23.
This evidence, the Commissioner argues, constitutes substantial evidence, doc. 9 at 14, and the Court agrees. Substantial evidence supports a finding that Carter does not suffer substantial deficits in adaptive functioning and that she lacks significantly subaverage general intellectual functioning. Indeed, and as the Commissioner emphasizes here, doc. 9 at 10, a diagnosis of borderline intellectual functioning is "mutually exclusive" of intellectual disability. Jordan v. Comm'r of Soc. Sec. Admin., 470 F. App'x 766, 768-69 (11th Cir. 2012); see also Hickel v. Comm'r of Soc. Sec., 539 F. App'x 980, 984-85 (11th Cir. 2012) (physicians' assessment that claimant had borderline intellectual functioning rather than mild mental retardation supported finding that claimant did not meet Listing 12.05)). And it is significant that Carter's brief conspicuously hammers away at partly dated IQ scores while simply reweighing the adaptation evidence, doc. 8 at 4-9, thus ignoring staleness and the substantial evidence factor ( i.e., this Court cannot reweigh evidence but in fact must determine only whether there is some substantial evidence that supports the ALJ's ruling).
One point warrants special attention here. Carter expressly argues that the ALJ's failure to mention her IQ scores in his decision constitutes "per se error [that] establishes that the ALJ failed to properly consider Listing 12.05C at all." Doc. 8 at 6. That's not the law. So long as the ALJ's path of reasoning is obvious, failure to expressly mention data points, documents, and even legal standards constitutes no reversible error.
Furthermore, while the ALJ must examine IQ test results in conjunction with other medical evidence and the claimant's daily activities and behavior, Popp, 779 F.2d at 1499-1500; Long v. Colvin, 2014 WL 1338503 at * 3 (N.D. Ala. Mar. 31, 2014), he is not required make an express validity determination of a claimant's IQ score. It is a data point. And where adaptation evidence prevents or rebuts the IQ-presumption, that's enough. Perkins v. Comm'r of Soc. Sec., 2014 WL 223905 at *3 (11th Cir. 2014) (substantial evidence supported ALJ's determination that claimant seeking disability insurance benefits and supplemental security income was not "mentally retarded" to the point where he had an impairment equaling a listed impairment, even though he had an IQ score of 69; claimant had prior gainful employment as a skilled cook, had managed others, a vocational expert concluded that his past work was skilled, and claimant had good daily activities including driving); Hickel, 539 F. App'x at 984-85 (substantial evidence supported the ALJ's finding that the claimant lacked the required level of deficits in adaptive functioning to meet Listing 12.05, where five separate medical opinions attested to the claimant's ability to function at a higher level than her IQ scores represented).
Still, this is a reasonably close case. The Court may well have reached a different result; it might have, for example, made different credibility choices. See doc. 6-2 at 23 (finding that Carter's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible, because there is no evidence of any significant worsening in the claimant's physical or mental condition.").
The ALJ's conclusion that Carter is "not disabled," doc. 6-2 at 30, therefore should be
Hickel v. Comm'r of Soc. Sec., 539 F. App'x. 980, 983 n. 4 (11th Cir. 2013), quoted in White v. Colvin, 2015 WL 4462209 at * 4 (M.D. Ala. July 21, 2015).
Sanders v. Astrue, 974 F.Supp.2d 1316, 1319-20 (N.D. Ala. 2013) (emphasis added). Here the ALJ did expressly considered Carter's GAF score of 58. Doc. 6-2 at 20; see also doc. 6-8 at 25.
