Case: 14-14011    Date Filed: 06/10/2015   Page: 1 of 8


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-14011
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 5:13-cv-00196-GKS-PRL


BYRON O'NEAL, SR.,

                                                              Plaintiff - Appellant,

                                      versus

COMMISSIONER OF SOCIAL SECURITY,

                                                             Defendant - Appellee.

                          ________________________

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

                                  (June 10, 2015)

Before MARCUS, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Byron O’Neal, Sr., appeals from the district court’s decision to affirm the

Commissioner of Social Security’s denial of Mr. O’Neal’s application for
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disability insurance benefits and supplemental security income. On appeal, Mr.

O’Neal argues that the administrative law judge (“ALJ”) erred by finding that he

did not meet the requirements of the listed impairment for mental retardation, 20

C.F.R. pt. 404, subpt. P, app. 1, § 12.05(C) (“Listing 12.05(C)”). Because

substantial evidence supported the ALJ’s determination, we affirm the district

court’s entry of summary judgment for the Commissioner.

                                         I.

      Mr. O’Neal filed for social security disability insurance benefits and for

supplemental security income. The Social Security Administration (“SSA”)

denied his application both initially and on reconsideration. Mr. O’Neal then

requested a hearing before an Administrative Law Judge (“ALJ”). Following the

hearing, the ALJ denied Mr. O’Neal’s application. The next day, the Appeals

Council granted Mr. O’Neal’s request for review and remanded the case to the ALJ

to further develop the record with medical treatment records, including opinion

evidence from Mr. O’Neal’s doctors, and to explain the reasons for the decision.

The ALJ held a second hearing and again denied the application. This time, the

Appeals Council declined Mr. O’Neal’s request for review, and the rejection of his

application became final.

      Mr. O’Neal then filed this lawsuit. Adopting the magistrate judge’s report

and recommendations, the district court affirmed the ALJ’s decision.


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                                        II.

      In Social Security appeals, we review de novo the legal principles upon

which the ALJ’s decision is based. Moore v. Barnhart, 

, 1211 (11th

Cir. 2005). We may not decide facts anew, make credibility decisions, or re-weigh

the evidence. 

review the Commissioner’s ultimate decision only to

determine whether it is supported by substantial evidence. 

is more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB, 

, 229 (1938); see also Richardson v. Perales,

, 401 (1971) (applying Consolidated Edison’s substantial evidence

standard to disability determinations under the Social Security Act). When a

decision is supported by substantial evidence, we must affirm, “[e]ven if we find

that the evidence preponderates against the Secretary’s decision.” MacGregor v.

Bowen, 

, 1053 (11th Cir. 1986).

                                        III.

                                        A.

      To be eligible for disability insurance benefits or supplemental security

income, a claimant must be unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be


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expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 423(a)(1)(E) & (d).

To determine whether a claimant is disabled, the Social Security Act applies a five-

step sequential evaluation. 20 C.F.R. § 404.1520(a) (establishing the five-step

evaluation for disability insurance benefit claims); 20 C.F.R. § 416.920(a)

(applying the same five-step inquiry to supplemental security income claims). If

the claimant is conclusively found to be disabled or not disabled at any step, then

the ALJ does not proceed to the next step.

      At step one, the ALJ determines whether the claimant is engaged in

“substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4). If not, then the

claimant must show at step two that her impairment is “severe,” i.e., that it

“significantly limits [her] physical or mental ability to do basic work activities.”

If the claimant makes that showing, then at step three she must

show that she has an impairment that meets or equals the criteria contained in the

Listings of Impairments. 

If the claimant meets her burden of

proving that her impairment meets or equals a Listing, then she is determined to be

disabled. 20 C.F.R. §§ 404.1520(a), 416.920(d). If she does not, then at step four,

the ALJ considers the claimant’s residual functional capacity (“RFC”), which

determines whether the claimant could still perform her past relevant work activity.

claimant could not do so, then the ALJ moves to step five and determines


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whether, in light of the claimant’s RFC, age, education, and work experience, the

claimant could perform other work. 

the claimant is not disabled; if not,

the claimant is disabled.

                                          B.

      On appeal, Mr. O’Neal argues that the ALJ erred at the third step of the

analysis by failing to conclude that he is disabled under Listing 12.05, which

covers intellectual disability. To prevail at step three, Mr. O’Neal must provide

evidence showing that his impairment meets all of the criteria in the Listing. If his

impairment meets all of the Listing criteria, then he is “conclusively presumed to

be disabled,” and the ALJ should have approved his application. Crayton v.

Callahan, 

, 1219 (11th Cir. 1997).

      To qualify under Listing 12.05, Mr. O’Neal must first meet the diagnostic

criteria in 12.05’s introductory paragraph: he “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.” Id.; see also

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00 (“Listing 12.05 contains an introductory

paragraph with the diagnostic description for intellectual disability.”). In addition,

Mr. O’Neal must meet the specific severity requirements in one of the

subparagraphs, A through D. He argues that he qualifies under 12.05(C), which

requires “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a


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physical or other mental impairment imposing an additional and significant work-

related limitation of function.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05(C).

The Commissioner does not dispute that Mr. O’Neal meets the requirements of

subsection (C). Rather, the Commissioner argues the ALJ correctly determined

that Mr. O’Neal failed to establish that he meets the additional requirements found

in the diagnostic description in the Listing’s introductory paragraph.

       At step three, the ALJ determined that Mr. O’Neal “does not have an

impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments.” Although Mr. O’Neal is correct that

there was no explicit finding regarding Listing 12.05, the ALJ did “give[]

particular consideration to. . . [Listing] 12.00 et seq., Mental Disorders,” in

reaching this determination. The district court adopted the magistrate judge’s

recommendation to uphold the ALJ’s implicit rejection of Listing 12.05 because

Mr. O’Neal “failed to establish—let alone even mention—that he meets the

additional requirements found in the diagnostic description in the introductory

paragraph.” 1

       We agree with the district court that substantial evidence supports the ALJ’s

determination that Mr. O’Neal does not meet the criteria for presumptive disability


       1
         See Hutchinson v. Bowen, 

, 1463 (11th Cir. 1986) (holding the ALJ
implicitly found that the claimant did not meet a Listing because it was clear from the record that
the ALJ had considered the relevant law and evidence).
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under Listing 12.05. The introductory paragraph in 12.05 requires that Mr. O’Neal

exhibit (1) significantly subaverage general intellectual functioning (2) with

deficits in adaptive functioning (3) that manifested before age 22. 20 C.F.R. pt.

404, subpt. P, app. 1, § 12.05; 

. Even though the SSA

has not specifically defined “deficits in adaptive functioning,” the Diagnostic and

Statistical Manual of Mental Disorders (“DSM”) states that adaptive functioning

“refers to how effectively individuals cope with common life demands and how

well they meet the standards of personal independence expected of someone in

their particular age group, sociological background, and community setting.”

DSM-IV-TR at 42. Although Mr. O’ Neal has a qualifying full scale I.Q. score of

63, which creates a rebuttable presumption that he manifested deficits in adaptive

functioning before age 22, the Commissioner may present evidence relating to a

claimant’s daily life to rebut this presumption. See Hodges v. Barnhart, 

, 1269 (11th Cir. 2001).

      The record evidence shows that Mr. O’Neal held a job as a dishwasher for

many years without receiving any special accommodation or training. He quit his

job only for family reasons. Afterward, he worked occasionally as a handy man,

helping with carpet and trim work and installing siding. Mr. O’Neal helps at home

with light yard work, looks after his two children, independently performs all his

activities of personal care and daily living, and attends church every Sunday. He


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holds a driver’s license and drives locally three times per week. These facts

support the ALJ’s implicit conclusion that, despite his low I.Q. score, Mr. O’Neal

does not have sufficient adaptive functioning deficits to meet the requirements of

the diagnostic description in Listing 12.05. While there may be other record

evidence to support Mr. O’Neal’s arguments, there is substantial evidence to

support the ALJ’s decision. Accordingly, we must affirm the district court’s order

and the Commissioner’s decision.

      AFFIRMED.




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