REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, Magistrate Judge.
This is a Social Security case referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Deputy Commissioner (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's Title XVI application for Supplemental Security Income (SSI) benefits. After careful consideration of the entire record, it is respectfully recommended that the decision of the Commissioner be affirmed.
I. Procedural History
This case has an extended procedural history pre-dating the Administrative Law Judge's (ALJ) decision that is before the Court. Tr. 72-85.2 On December 26, 1995, an application for SSI payments was filed on behalf of Plaintiff by his grandmother. Tr. 72. (Plaintiff was born in 1987. Tr. 27, 73.) Pursuant to Public Law 104-193, Plaintiff's case was re-evaluated and new assessments of disability were performed in accordance with the modified standards of disability. Id. It was determined that Plaintiff no longer met the definition of disability effective June 1, 1997. Id. Plaintiff's grandmother requested reconsideration which was denied and a request for hearing was filed. Id. After this hearing, the ALJ determined Plaintiff was no longer disabled and Plaintiff's grandmother filed an appeal with the Appeals Council. Id. On June 27, 2003, the Appeals Council remanded the "case for further proceedings under the new and material evidence provision of the Social Security Administration regulations." Id. On November 1, 1999, a subsequent claim was filed which was granted by the state agency and it was determined that Plaintiff ("the child") became disabled on November 1, 1999. Id. (As of 1999, Plaintiff was 11 years old. Tr. 29.) The Appeals Council affirmed the finding by the state agency that Plaintiff became disabled on November 1, 1999. Tr. 72. On remand, the Appeals Council required the ALJ to give further consideration to the treating and examining source medical opinions, further evaluate Plaintiff's mental impairments and give further consideration to Plaintiff's maximum residual functional capacity (RFC) prior to November 1, 1999. Id. Plaintiff and his grandmother appeared and testified at a subsequent hearing held on May 10, 2004, Gainesville, Florida. Id. Plaintiff "was not represented despite the fact that [Plaintiff] and his grandmother were fully apprised of their right to legal representation." Tr. 73. ALJ John D. Thompson, Jr., entered a decision on February 24, 2005, and determined that Plaintiff, as a child, was not eligible for SSI payments from June 1, 1997, through October 31, 1999, his eligibility for these benefits ended on August 31, 1997, and that "[h]e became re-entitled to such disability benefits on November 1, 1999[,] pursuant to a prior determination by the state agency." Tr. 79.
It appears Plaintiff received SSI benefits until he was incarcerated on February 27, 2012. Tr. 23, 26, 375, 380. Plaintiff was released from incarceration on or about February 6, 2014. Tr. 380.
On February 7, 2014, Plaintiff filed an application for SSI alleging disability beginning February 7, 2014, based on bipolar, schizophrenia, and crack baby, slow learner. Tr. 17, 167-78, 216, 221, 248. Plaintiff's application was denied initially on June 10, 2014, and upon reconsideration on July 3, 2014. Tr. 17. On July 22, 2014, Plaintiff requested a hearing. Id. On May 10, 2016, Plaintiff appeared and testified at a video hearing conducted by ALJ Robert Droker with Plaintiff in Gainesville, Florida, and the ALJ presided over the hearing from Jacksonville, Florida. Tr. 17, 37-65. Martin Katz, an impartial vocational expert, testified during the hearing. Tr. 37, 61-65. Plaintiff was represented by Martin J. Goldberg, an attorney. Tr. 17, 37-39, 124-25.
On May 4, 2016, Plaintiff's counsel filed a brief. Tr. 275-76. On June 2, 2016, the ALJ issued a decision and denied Plaintiff's application for benefits, concluding that Plaintiff was not disabled since February 7, 2014, the date the application was filed. Tr. 17-31. On July 29, 2016, Plaintiff's representative requested the Appeals Council to review the ALJ's decision and filed an addendum to the request for review. Tr. 163-66, 287; see Tr. 4. On July 14, 2017, the Appeals Council denied Plaintiff's request for review. Tr. 1-6.
On September 14, 2017, Plaintiff, by counsel, filed a Complaint seeking review of the ALJ's decision. ECF No.1. The parties filed memoranda of law, ECF Nos. 20-21, which have been considered.
II. Findings of the ALJ
The ALJ made several findings:
1. "The claimant has not engaged in substantial gainful activity since February 7, 2014, the application date." Tr. 19.
2. The claimant has the following severe impairments: attention deficit hyperactivity disorder (ADHD); borderline intellectual functioning, a personality disorder; and substance abuse. Id.
3. "The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." Id. The ALJ determined that the claimant did not meet the criteria under Listings 12.02, 12.05, 12.08, and 12.09. Id. The ALJ determined that Plaintiff had moderate restriction in activities of daily living, in social functioning, and with regard to concentration, persistence, or pace, and experienced no episodes of decompensation, which have been of extended duration. Tr. 20. Pertinent here, the ALJ considered the limitations identified in paragraphs A through D of Listing 12.05 and determined Plaintiff did not meet these requirements. Tr. 21.
4. "[T]he claimant has the residual functional capacity [RFC] to perform medium work as defined in 20 CFR 416.967(c) except he needs to avoid ladders or unprotected heights; needs to avoid the operation of heavy, moving machinery; needs a low-stress work environment, meaning no production line; needs simple, repetitive tasks; and needs to avoid contact with the public or co-workers, meaning he needs tasks that do not require the assistance of others or that require him to assist others with the performance of their tasks." Tr. 21.
5. "The claimant is unable to perform any past relevant work," such as kitchen helper, medium exertion, with an SVP of 2. Tr. 29; see infra at 6, n.3.
6. The claimant was 26 years old, which is defined as a younger individual age 18-49, on the date the application was filed. Id. The claimant has a limited education and is able to indicate an English. Tr. 30. Transferability of jobs is not an issue in this case because the claimant's past relevant work is unskilled. Id.
7. Considering the claimant's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform such as hand packer and food cleaner, medium exertion, with an SVP of 2; and warehouse checker and labeler, light exertion, with an SVP of 2.3 Tr. 32.
8. "The claimant has not been under a disability, as defined in the Social Security Act, since February 7, 2014, the date the application was filed." Tr. 31.
III. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (citations omitted).4
"In making an initial determination of disability, the examiner must consider four factors: `(1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'" Bloodsworth, 703 F.2d at 1240 (citations omitted). A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be 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(d)(1)(A); see 20 C.F.R. §§ 416.905(a), 416.909 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212 (2002).
The Commissioner analyzes a claim in five steps. 20 C.F.R. § 416.920(a)(4)(i)-(v).
1. Is the individual currently engaged in substantial gainful activity?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet or equal those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
4. Does the individual have the RFC to perform work despite limitations and are there any impairments which prevent past relevant work?5
5. Do the individual's impairments prevent other work?
A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden, however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy in light of the claimant's RFC, age, education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 416.920(a)(4)(v), (e) & (g). An ALJ may make this determination either by applying the grids or by obtaining the testimony of a vocational expert. Phillips, 357 F.3d at 1239-40; see 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner carries this burden, the claimant must prove that he or she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
Plaintiff bears the burden of proving that he is disabled, and consequently, is responsible for producing evidence in support of his clai See 20 C.F.R. § 416.912(a)(1); Moore, 405 F.3d at 1211.
IV. Legal Analysis
Substantial Evidence Supports the ALJ's Determination that Plaintiff's Impairments do not Meet or Equal the Criteria of Listing 12.05B or C.
A.
Plaintiff argues he is not disabled because his mental condition meets the criteria in Listing 12.05B and/or C in Appendix 1 of 20 C.F.R. Part 404, Subpart P. ECF No. 20 at 5-15. The Listing of Impairments describes conditions that are so severe as to prevent a person from performing any gainful activity. See 20 C.F.R. § 416.925(a); Wilson, 284 F.3d at 1224. A claimant bears the burden of proving his impairments meet a Listing. See Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). "To `meet' a Listing, a claimant must have a diagnosis included in the Listings and must provide medical reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement." Wilson, 284 F.3d at 1224; see 20 C.F.R. § 416.925(c)(3). The claimant has the burden of proving that his impairments meet or equal a listed impairment by presentation of specific evidence of medical signs, symptoms, or laboratory test results meeting all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Plaintiff alleges he is disabled because he has an "inability to work as of February 7, 2014, due to a bipolar disorder, schizophrenia, ADHD, and being a "crack baby, slow learner" (Exhibits B4E and B7E)." Tr. 22.
B.
Listing 12.05B and C provides:
12.05 Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
* * * *
B. A valid verbal, performance, or full scale IQ of 59 or less; OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a 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, § 12.05B and C (emphasis added).6
The introductory material to the mental disorders listings clarifies Listing 12.05 stating:
The structure of the listing for intellectual disability (12.05) is different from that of the other mental disorders listings. Listing 12.05 contains an introductory paragraph with the diagnostic description for intellectual disability. It also contains four sets of criteria (paragraphs A through D). If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, [SSA] will find that your impairment meets the listing.
20 C.F.R., pt. 404, subpt. P, app. 1, § 12.00A; see also 20 C.F.R. § 416.925(c)(3).
The diagnostic description in Listing 12.05 requires a showing of deficits in adaptive functioning, not just IQ scores. 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.'" O'Neal v. Comm'r of Soc. Sec., 614 F. App'x 456, 459 (11th Cir. 2015) (unpublished) (quoting DSM-IV-TR at 42); see infra at 22 n.8.
Listing 12.05B has two elements. First, it requires one valid IQ score of 59 or less.7 20 C.F.R., pt. 404, subpt. P, app. 1, § 12.05B. IQ scores obtained after age 22 raise a presumption that they are reflective of lifelong intellectual functioning. Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir. 2001). Second, it requires deficits in adaptive functioning which initially manifested before age 22. 20 C.F.R., pt. 404, subpt. P, app. 1, § 12.05.
To meet listing 12.05 ("intellectual disability"), "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, 120 F.3d at 1219. These requirements are referred to as the listing's "diagnostic criteria." See 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 to satisfying the diagnostic criteria, a claimant must meet one of the four severity requirements in paragraphs A through D of the listing. See id. § 12.05. Under paragraph C, the only paragraph at issue here, a claimant must show that she has both "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function."
Frame v. Comm'r of Soc. Sec. Admin., 596 F. App'x at 910-11.
Generally, the claimant meets the criteria for presumptive disability under Listing 12.05C when the claimant presents a valid IQ 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. See Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.1992) (a valid IQ score need not be conclusive of mental retardation, where IQ score is inconsistent with other evidence in record concerning claimant's daily activities and behavior); Crayton v. Callahan, 120 F.3d 1217, 1219-20 (11th Cir. 1997). "An ALJ should consider whether the results of an I.Q. test are consistent with the other medical evidence and the claimant's daily activities and behavior." Henry v. Barnhart, 156 F. App'x 171, 173 (11th Cir. 2005) (unpublished) (citing Popp v. Heckler, 779 F.2d 1497, 1499-1500 (11th Cir. 1986)).
In Hodges v. Barnhart, the court found that there was a presumption of deficits in adaptive functioning prior to age 22 if the claimant had a valid IQ score between 60 and 70. 276 F.3d at 1268-69 ("absent evidence of sudden trauma that can cause retardation, the IQ tests create a rebuttable presumption of fairly constant IQ throughout [the claimant's] life"). The court cautioned, however, that this presumption did not shift the burden of proof from the claimant to prove entitlement to benefits. Id. at 1269. Moreover, the court explained that this presumption is rebuttable and the Commissioner may present evidence of the claimant's daily activities to rebut the presumption of mental retardation. Id. The Commissioner is not required to find "intellectual disability," formerly "mental retardation" based on IQ scores alone. In Hodges, there was no evidence rebutting the presumption that the plaintiff had mental retardation with deficits in adaptive functioning. 276 F.3d at 1268. The record was devoid of evidence related to plaintiff's mental condition before age 22 and the record indicated that the plaintiff could barely read from books and needed her daughter's assistance to write letters. Id. The court remanded for the purpose of examining plaintiff's activities of daily living to see if those activities rebutted the presumption of mental impairment. Id. at 1269.
Consistent with Hodges, "[i]f a claimant has been able to adapt in functioning after age 22, it is permissible to find that Listing 12.05C has not been met." Monroe v. Astrue, 726 F.Supp.2d 1349, 1355 (N.D. Fla. 2010). The court in Monroe explains:
In an unpublished case, the Eleventh Circuit has recast the rule of Popp: to meet Listing 12.05(C), "a claimant must at least (1) have significantly subaverage general intellectual functioning; (2) have [current] deficits in adaptive functioning; and (3) have manifested deficits in adaptive behavior before age 22." Pettus v. Astrue, 226 Fed. Appx. 946, 948 (11th Cir. Apr. 5, 2007) (not selected for publication in the Federal Reporter, No. 06-15667). However, it has been pointed out that: "Listing 12.05 does not require significant deficits in adaptive functioning; it only requires that there be `deficits in adaptive functioning initially manifested during the developmental period; i.e., . . . before age 22.' 20 C.F.R., Part 404, Subpart P, Appendix 1 § 12.05." Cammon v. Astrue, 2009 U.S. Dist. LEXIS 92293, 2009 WL 3245458, *11 (N.D. Ga. Oct. 5, 2009) (No. CIV. A. 3:08-CV-0131-JFK).
Id. at 1355 n.5. Further,
The caselaw addressing the "adaptive functioning" aspect of Listing 12.05C suggests that the adaptive functioning must be significantly inconsistent with the I.Q. score. An ability to do simple daily activities and simple jobs is not enough. As noted in Lowery, in Popp the court sustained the ALJ's rejection of a claim of equivalency to Listing 12.05C because the claimant's I.Q. score of 69 was "inconsistent with evidence that [the claimant] 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." 979 F.2d at 837, citing Popp, 779 F.2d at 1499. Additionally, there was evidence in Popp that the claimant had "tended to place himself in a very unfavorable light," thereby rendering the personality test scores (the MMPI, not the I.Q. test) invalid in the opinion of the examiner. Popp, 779 F.2d at 1498-1499, 1500.
Popp is perhaps the strongest case for finding that an I.Q. score below 70 does not necessarily meet Listing 12.05C. There are several others with facts somewhat like Popp. Bischoff v. Astrue, 2008 U.S. Dist. LEXIS 79534, 2008 WL 4541118 (S.D. Fla. Oct. 9, 2008) (No. 07-60969-CIV), affirmed the determination that Listing 12.05C was not met. The court noted that while the claimant's I.Q. scores were lower than 70, the claimant had previously worked as a parts manager and as an automobile mechanic, jobs which required technical knowledge and skills, and he successfully supervised other people for five years. Id., at *20. There was also evidence that the claimant was "faking" his I.Q. score, and gave conflicting reports that he had finished only the sixth, or seventh, or eighth, or ninth, or tenth grades, or had a G.E.D., or had vocational training. Id.
Id. at 1355. As noted in Monroe, a different result was reached in Durham v. Apfel, 34 F.Supp.2d 1373 (N.D. Ga. 1998), where the court held:
Mr. Durham's work history does not support the ALJ's implication that he successfully worked for 40 years. He had no earnings whatsoever in nine years between 1953 and 1991, and minimal earnings several other years (TR 101-102). Mr. Durham has worked primarily as a heavy laborer (TR 46). There is no evidence that these jobs are beyond the reach of a mildly retarded individual. 34 F.Supp.2d at 1380. Distinguishing Popp, the court said:
Unlike Mr. Popp, Mr. Durham's work experience does not include technical jobs, but jobs as a laborer. He did not teach high school algebra, he worked as a tire repairer, laborer, kitchen helper and material handler (TR 46). Mr. Durham did not go to college, he went to the fourth grade. Id. See also Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003) ("ability to pay his own bills, add and subtract, use an ATM machine and to take care of all his own personal needs," and "ability to identify and administer his medication; his previous jobs; his obtaining a GED" were not inconsistent with a finding of mental retardation and the I.Q. scores) (citing Brown v. Sec'y of HHS, 948 F.2d 268, 270 (6th Cir. 1991), "rejecting the Commissioner's argument that a claimant's full scale IQ of 68 was inconsistent with, among other things, his driver's license and work history as a truck driver, limited literacy and sixth grade education, and ability to make change, do laundry, and clean his room.").
Monroe, 726 F. Supp. 2d at 1356-57; see Willis v. Astrue, No. 5:12cv64/RS/CJK, 2012 U.S. Dist. LEXIS 182201 (N.D. Fla. Nov. 26, 2012).
Although the ALJ is not required to accept the results of an IQ test as reported by an expert, "[t]he ALJ cannot act as both judge and physician." Durham v. Apfel, 34 F. Supp. 2d at 1380 (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 IQ score that is favorable to a claimant.
C.
At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the criteria of Listing 12.05B and C. Tr. 19-21. In making this determination, the ALJ considered the criteria of Listing 12.05B and C in conjunction with other medical evidence and Plaintiff's daily activities and behavior. Id. See generally Popp v. Heckler, 779 F.2d at 1500; Henderson v. Astrue, 401 F. App'x 449 (11th Cir. 2010) (unpublished).
The ALJ determined that Plaintiff did not meet the "paragraph B" criteria of Listing 12.05 because Plaintiff
does not have a valid verbal, performance, or full scale IQ score of 59 or less. Although the claimant's 2006 IQ testing rendered a Performance IQ score of 59, Dr. Benet stated that this score was not a valid indicator of the claimant's functioning based on his clinical presentation, which was indicative of borderline intellectual functioning (Exhibit B4F) [Tr. 304].
Tr. 21. The ALJ also determined Plaintiff did not satisfy the "paragraph C" criteria
because the claimant does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. Although the claimant's 2006 IQ testing rendered a Performance IQ score of 59, Verbal IQ score of 66, and a Full Scale IQ score of 61, Dr. Benet stated that the scores were not valid indicators of the claimant's functioning based on his clinical presentation, which was indicative of "high" borderline intellectual functioning (Exhibits B4F [Tr. 304] and B12F [Tr. 382]). Furthermore, Dr. Harness found that the claimant's February 2012 BETA III IQ and WASI IQ scores of 70 were indicative of borderline intellectual functioning (Exhibit B11F) [Tr. 377].
Id.; see Tr. 22, 377. (Dr. Harness also found Plaintiff's ABC score of 40 indicative of "adequate adaptive behavior functioning." Tr. 377.)
Plaintiff did not meet his burden of proving that his impairment met Listing 12.05 because he did not show that his impairments met the diagnostic description in the introductory paragraph of Listing 12.05, specifically that he had deficits in adaptive functioning. 20 C.F.R., pt. 404, subpt. P, app. 1, §§ 12.05. Plaintiff's activities, as discussed by the ALJ, do not indicate deficits in adaptive functioning. Tr. 17-31. Plaintiff admitted that he has no problem with self-care tasks, which he can perform independently. He admitted performing a variety of activities, including helping with yard work conditions, making his bed, cooking, vacuuming, sweeping, mopping, and taking out trash, going to the grocery store, attending church, visiting friends, watching television, listening to music, and playing basketball, among other things. See, e.g., Tr. 26, 42-46, 51-52, 227-42. When he was incarcerated, Plaintiff also performed job duties, specifically washing dishes, which he stopped because he "was tired of it" rather than any problem with performing the task. Tr. 45, 51-52. He also reported applying for a job in 2014, which is inconsistent with his statements that he believes he is unable to work at any job. Tr. 28, 41, 381. Plaintiff's daily activities provide substantial evidence that he did not have the requisite deficits in adaptive functioning. See O'Neal v. Comm'r of Soc. Sec., 614 F. App'x at 459.
Moreover, the medical sources who examined and treated Plaintiff did not indicate that he had deficits in adaptive functioning. Plaintiff's Department of Corrections records from 2012 and 2013 indicate that his mental status examinations were essentially normal, including normal levels of anxiety, hostility, depression, and distractibility, despite the fact that he was not taking any psychotropic medications at that time. Tr. 22-23, 27, 366-78. Those medical examinations also revealed intact memory and adequate insight and judgment. Tr. 366-78. Although Plaintiff had five DR's during his incarceration, in December 2013, Dr. Kannikal noted that only one of those events was in the past six months. Tr. 373. Dr. Kannikal also noted that during his incarceration, Plaintiff's episodes of mood swings had decreased from three to five episodes per month to zero episodes per month. Tr. 372-73.
After his alleged onset of disability in February 2014, Plaintiff was seen by Dr. Benet for an evaluation on May 23, 2014, as noted by the ALJ. Tr. 23, 379-83. At that time, Plaintiff's grandmother reported that he was "doing well on medication, but without it, she said, `He gets mad over anything, slamming doors, and foaming at the mouth like a mad dog.'" Tr. 380. He no longer hears voices as in the past. Id. Although earlier IQ testing included scores that could indicate mild mental retardation, Dr. Benet noted that Plaintiff was more likely functioning in the borderline intellectual functioning range based on his clinical examination. Tr. 381 ("General intellectual ability was estimated to be high borderline, with correspondingly limited judgment and insight." Id.) Further, Dr. Benet noted that Plaintiff's grandmother reported he arises early and often leaves the house to hang out with friends and he sometimes helps her clean around the house and attends church. Id. During this visit, Plaintiff also reported recently applying to work at McDonald's. Id. Dr. Benet described Plaintiff as quiet, but friendly and cooperative, with a pleasant mood. Id.
The ALJ noted "Dr. Benet indicated that an updated psychiatric evaluation from Meridian Behavioral Health diagnosed the claimant with cannabis abuse and a bipolar disorder with a GAF score of 65."8 Tr. 23; see Tr. 380. Dr. Benet gave Plaintiff a current GAF
score of 50 to 55, which is indicative of moderate to serious symptoms. Dr. Benet opined that the claimant would likely have marked difficulties performing work-related tasks involving understanding and memory, sustain concentration and persistence, social interaction, and adaptation. He recommended continued treatment through Meridian for bipolar disorder and possible cannabis and alcohol abuse, and he recommended an updated general intellectual evaluation to rule out borderline intellectual functioning versus mild mental retardation.
Tr. 383. Ultimately, the ALJ gave "some weight" to Dr. Benet's GAF score of 50 to 55, "but little weight to his opinion" noted above and explained:
this opinion is not supported by his own relatively benign examination findings related to the claimant's bipolar disorder or by his findings that the claimant had adequate attention and concentration with borderline to fair recall (Exhibit B12F) [Tr. 381]. His opinion is also not supported by the claimant's Department of Corrections records or by his more recent treatment records from Meridian, which show improvement of his symptoms once he resumed taking medication (Exhibit B13F) [Tr. 389 (Mar. 28, 2016)].
Tr. 29; see infra at 26-30 for the context of the ALJ's conclusions.
Treatment records from Meridian Behavioral Health (Meridian) in 2015 to 2016 showed some problems with anger or aggression, but only mild impairments in memory despite Plaintiff's borderline intellectual functioning. Tr. 385-93. (The ALJ considered records from Meridian during this time-span. Tr. 24-25.) The absence of intellectual, cognitive, or other mental difficulties in the notes of these professionals provides further evidence that Plaintiff did not have deficits in adaptive functioning.
The ALJ gave great weight to the evaluations of State agency psychological consultants, Angeles Alvarez-Mullin, M.D. (June 4, 2014), and Val Bee, Psy.D. (July 2, 2014),
who found that the claimant has borderline intellectual functioning rather than an intellectual disability with no more than moderate limitations in functioning (Exhibits B3A and B6A). Their opinions (that the claimant is capable of understanding and remembering simple instructions, probably best when spoken/demonstrated; has adequate attention and concentration to complete simple, routine tasks within appropriate periods of time; capable of maintaining routine work without special supervision; capable of completing a routine work schedule; needs limited social interaction; and is capable of adjusting to simple changes in his work routine, but might not like them) are supported by the objective evidence of record, the efficacy of the claimant's medication regimen, and his activities of daily living.
Tr. 29.9 Although both State agency consultants did not examine Plaintiff or review the entire record,10 the ALJ reviewed all the evidence, and the opinions of both consultants are consistent with the record as a whole and the provided explanations for their opinions. Tr. 90-94, 103-09; see 20 C.F.R. § 416.927(c)(3), (c)(4).
In addition, Plaintiff did not prove his impairment satisfied the diagnostic description in the introductory paragraph of Listing 12.05, which alone is sufficient to conclude Plaintiff's impairments did not meet Listing 12.05. See Zebley, 493 U.S. at 530; Wilson, 284 F.3d at 1224. Plaintiff also did not provide a valid IQ score to satisfy the criteria in subparagraph B or C of Listing 12.05. The record indicates Plaintiff received a Performance IQ of 59 when tested in 2006. Tr. 382. As noted above, Dr. Benet questioned, however, the validity of the scores and noted Plaintiff's 2006 IQ test scores, including his Performance IQ score of 59, were not a valid indicator of Plaintiff's ability to function based on his clinical presentation, but rather was more indicative of borderline intellectual functioning. Tr. 22, 300-05, 381. The evidence also shows that Plaintiff's 2012 IQ test scores of 70 were also indicative of borderline intellectual functioning, Tr. 21, 374, 377, or possibly even low average intellectual function. Tr. 104.
Moreover, the other evidence in the record, as discussed above and by the ALJ, indicates the IQ scores were not valid. Plaintiff's activities of daily living and the objective medical findings and treatment notes do not indicate that the IQ scores accurately reflected Plaintiff's intellectual functioning. Thus, substantial evidence supports the conclusion that the IQ scores were not valid. Tr. 22-29; see Frame, 596 F. App'x at 913.
After discussing the medical and other evidence, including Plaintiff's and his grandmother's hearing testimony, Tr. 22-28, the ALJ summarized his findings supporting his RFC determination. Tr. 27-29.
The undersigned finds that the claimant's allegations of an inability to work as of February 7, 2014, due to his borderline intellectual functioning, ADHD, and personality disorder are not entirely consistent with the evidence of record. The claimant's Department of Corrections records from 2012 and 2013 indicate that his mental status examinations were essentially normal, including normal levels of hostility/irritability, depression, anxiety, and distractibility, despite the fact that he was not taking any psychotropic medications at that time (Exhibit B11F). Those mental status examinations also revealed intact memory and adequate insight and judgment (Exhibit B11F). Dr. Harness indicated that the claimant had an ABC score of 40, which indicated adequate adaptive behavior functioning (Exhibit B11F). Although the claimant had five DRs during his incarceration, in December 2013, Dr. Kannikal noted that only one of those was in the past six months and the claimant had no mental health emergencies or inpatient admissions within the past six months (Exhibit B11F). Dr. Kannikal further indicated that, during the claimant's incarceration, his episodes of mood swings had decreased from 3-5 episodes per month to 0 episodes per month, and his episode intensity level had decreased from a 6/10 on an increasing scale of 1-10 to a 0/10 (Exhibit B11F). The claimant's subsequent treatment records from Meridian in 2015 and 2016 also showed some problems with anger and aggression, but only mild impairments in memory despite his borderline intellect (Exhibit B13F). In addition, Dr. Benet described the claimant as quiet, but friendly and cooperative with a pleasant mood and "smiled often" (Exhibit B12F).
The undersigned notes that the claimant was not receiving treatment for his bipolar disorder and personality disorder for much of the period at issue; however, both he and his grandmother reported an improvement of his symptoms once he resumed taking medications in 2016 without causing side effects (Exhibit B13F and hearing testimony). Of note, the claimant did not fill this prescription when initially prescribed, and there is no evidence that he attended anger management therapy as recommended by his treating ARNPs at Meridian (Exhibit B13F). To the extent that the claimant alleges an inability to afford treatment or medications, the undersigned finds that there is no evidence that he sought out or was denied access to low-cost or no-cost medical care during this period. The efficacy of the claimant's treatment regimen when he takes his medication as prescribed is also supported by his grandmother's report to Dr. Benet that he did well when he was on his medications, but he became "mad over everything" when he was not (Exhibit B12F). The undersigned also notes that the claimant has been diagnosed with a cannabis-related disorder (Exhibit B13F) and tested positive for opiates and TCH in November 2015 despite his denial of use of substances (Exhibit B13F).
The claimant's adaptive functioning is also not consistent with his allegations as he and his grandmother have reported that he engages in activities of daily living including listening to music, watching television, playing video games, cleaning his room, going outside daily, shopping in stores for snacks once a week, talking on the phone, performing personal care independently, washing dishes, helping his grandmother with the yard, cooking a little bit, making his bed, vacuuming, sweeping, mopping, taking out the trash, going out to eat twice a month, going to the grocery store once a month, going to church 2-3 times per month, visiting friends daily, and playing basketball (Exhibits B5E, B6E, B12F, B13F, and hearing testimony). He has also reported applying for jobs during the period at issue (Exhibit B12F), which is inconsistent with his statements that he believes he is unable to work at any job. The undersigned concludes that these activities and abilities are consistent with the determination that the claimant is able to perform tasks in a low-stress work environment, meaning no production line; needs simple, repetitive tasks; and needs to avoid contact with the public or co-workers, meaning he needs tasks that do not require the assistance of others or that require him to assist others with the performance of their tasks.
The undersigned gives some weight to the Third-Party Function Report of the claimant's grandmother, which describes some difficulty paying attention with the need for reminders to complete tasks as well as anger problems (Exhibit B5E); however, the undersigned concludes that these signs and symptoms are not consistent with an inability to perform all work and are adequately accounted for in the claimant's residual functional capacity.
With regard to the medical opinions of record, the undersigned gives some weight to the opinions of Dr. Harness and Dr. Kannikal, who assigned GAF scores of 65 (indicative of some mild symptoms) (Exhibit B11F); however, the undersigned finds that subsequent evidence shows that the claimant has moderate limitations due to problems controlling his anger as well as with maintaining attention and concentration.
The undersigned gives some weight to Dr. Benet's GAF score of 50-55 (indicative of moderate to serious symptoms), but little weight to his opinion that the claimant would likely have marked difficulty performing work-related tasks involving understanding and memory, sustained concentration and persistence, social interaction, and adaptation (Exhibit B12F). This opinion is not supported by his own relatively benign examination findings related to the claimant's bipolar disorder or by his findings that the claimant had adequate attention and concentration with borderline to fair recall (Exhibit B12F). His opinion is also not supported by the claimant's Department of Corrections records or by his more recent treatment records from Meridian, which show improvement of his symptoms once he resumed taking medication (Exhibit B13F).
The undersigned gives great weight to the evaluations of the State agency psychological consultants (Angeles Alvarez-Mullin, M.D., and Val Bee, Psy.D.), who found that the claimant has borderline intellectual functioning rather than an intellectual disability with no more than moderate limitations in functioning (Exhibits B3A and B6A). Their opinions (that the claimant is capable of understanding and remembering simple instructions, probably best when spoken/demonstrated; has adequate attention and concentration to complete simple, routine tasks within appropriate periods of time; capable of maintaining routine work without special supervision; capable of completing a routine work schedule; needs limited social interaction; and is capable of adjusting to simple changes in his work routine, but might not like them) are supported by the objective evidence of record, the efficacy of the claimant's medication regimen, and his activities of daily living.
Although there is a history of low IQ scores, given the evaluations of Dr. Alvarez-Mullin and Dr. Bee as well as the conclusions of the consultative examiner, Dr. Benet, the undersigned finds the claimant is at borderline intellectual functioning rather than intellectual disability/mild mental retardation. The undersigned finds further that the impact of volitional factors rather than from the claimant's medically determinable impairments is significant in this case.
Tr. 27-29.
The burden is on the claimant to prove that he is disabled. Bell v. Bowen, 796 F.2d 1350, 1352 (11th Cir. 1986) (citing 20 C.F.R. §§ 404.1525, 404.1526); Wilkinson v. Bowen, 847 F.2d 660, 663 (11th Cir. 1987). The third-step of the five-step process requires the ALJ to compare the claimant's medical evidence to a list of impairments "presumed severe enough to preclude any gainful work." Sullivan v. Zebley, 493 U.S. at 525. If the medical evidence meets or equals the listing, then a finding of disability is made. Id. The claimant's impairments must meet or equal all the specified medical criteria in a particular listing for the claimant to be found disabled at step three of the sequential evaluation process. Id. at 530-31. Plaintiff did not meet his burden. No error has been shown.
V. Conclusion
Considering the record as a whole, the findings of the ALJ are based upon substantial evidence in the record and the ALJ correctly followed the law. Accordingly, pursuant to 42 U.S.C § 405(g), it is respectfully recommended that the decision of the Commissioner to deny Plaintiff's application for Social Security benefits should be AFFIRMED and Judgment entered for Defendant.
