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Jurisdiction: Alabama Southern District Court
Decision Date: 9/23/2014

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Myers v. Colvin Myers v. Colvin (S.D. Ala., 2014)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        TANESHA MYERS, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 13-00099-B

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 23, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        TANESHA MYERS, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 13-00099-B

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 23, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff Tanesha Myers (hereinafter "Plaintiff") brings this action seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq and 1381, et seq. On April 10, 2014, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 20). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be REVERSED and REMANDED.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. Procedural History

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff protectively filed an application for a period of disability, disability insurance benefits, and supplemental security income on November 9, 2009. (Tr. at 156). Plaintiff alleged that she had been disabled since August 31, 2009, due to sleep disorder, problems with knees, asthma, and poor vision. (Id. at 160). Plaintiff did not allege a mental impairment of any kind. (Id. ). Plaintiff's applications were denied and upon timely request, she was granted an administrative hearing before Administrative Law Judge Vincent P. Intoccia (hereinafter "ALJ") on May 10, 2011. (Id. at 28). Plaintiff attended the hearing with her counsel and provided testimony related to her claims. (Id. at 30). A vocational expert ("VE") also appeared at the hearing and provided testimony. (Id. at 45). On June 13, 2011, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 23). The Appeals Council denied plaintiff's request for review on January 8, 2013. (Id. at 1). The parties waived oral argument (Doc. 22), and agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. Issue on Appeal

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Whether the ALJ erred in finding that Plaintiff did not meet Listing 12. 05C?

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. Factual Background

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff was born on December 1, 1988, and was twenty-two years of age at the time of her administrative hearing on May 10, 2011. (Tr. 31, 155). Plaintiff testified that she was in regular classes and completed the twelfth grade in high school, but she was not able to pass the reading portion of the Alabama High School Graduation Examination. Thus, she did not receive her diploma, and she has not obtained a GED. (Id. at 31-32). Plaintiff further testified that she received her driver's license in 2009, that she had to take the oral examination three times before passing it, and that someone generally drives her around. (Id. at 37-38, 43, 47).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In her Function Report provided to the Agency, as well as her hearing testimony, Plaintiff stated that she worked for little over a year operating a sewing machine for a cap company, and she also worked as a cashier in the fast food industry. (Id. at 32-33, 47, 176). In addition, Plaintiff reported that she no children, and that before a house fire, she lived alone. (Id. at 30-31, 37, 170-171). According to Plaintiff, she takes care of her personal needs; however, her mother performs her household chores. (Id. ). Plaintiff also testified that she

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        goes shopping with her mother and her sisters, that she pays her own bills, that she has never had a checking account, and that she goes to church a couple of times a month. (Id. at 37, 42-43, 171). Additionally, Plaintiff testified that she spends her time watching television and writing to herself. (Id. at 42).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff testified that she stopped working in 2009 because she was laid off when the cap manufacturing company shut down. (Id. at 33). According to Plaintiff, the "biggest thing" that keeps her from working now is her leg pain. Plaintiff testified that she injured her left knee in gym class at school in 2007, and had to have arthroscopic surgery as a result. Later, in 2008, Plaintiff was diagnosed with a meniscus tear injury in her right knee. (Id. at 34, 39, 41, 259, 339). Plaintiff also testified that she has low back pain, and described the pain in her left and right knees as a seven or eight on a ten-point pain scale. (Id. at 36, 41). Plaintiff stated that she takes a muscle relaxer and uses pain gel for her knees and back. (Id. at 35-36, 190).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        IV. Analysis

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Standard of Review

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied. Martin v. Sullivan 894 F.2d 1520 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen 792 F.2d 1065 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan 921 F.2d 1233 1235 (11th Cir. 1991); Bloodsworth v. Heckler 703 F.2d 1233 1239 (11th Cir. 1983) (holding substantial evidence is defined as "more than a scintilla, but less than a preponderance" and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion. "). In determining whether substantial evidence exists, a court must view the record as a whole, taking into account evidence favorable, as well as unfavorable, to the Commissioner's decision. Chester v. Bowen 792 F.2d 129 131 (11th Cir. 1986); Short v. Apfel 1999 U.S. Dist. LEXIS 10163, *4 (S. D. Ala. June 14, 1999).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. Discussion

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                An individual who applies for Social Security disability benefits must prove his or her disability. 20 C. F. R. §§

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        1512, 416. 912. Disability is defined as the "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 also 20 C. F. R. §§ 404. 1505(a), 416. 905(a). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven his disability. 20 C. F. R.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 7

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        §§ 404. 1520, 416. 920.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In the case sub judice the ALJ determined that while Plaintiff had engaged in work activity after August 31, 2009, he found that additional evidence was needed on this issue. (Id. at 10). In order to avoid delay, he elected to proceed with the remaining steps of the evaluation process because he determined that the record evidence established that Plaintiff is not disabled. (Id. at 10-11). To that end, the ALJ determined at step two that Plaintiff has the severe impairments of obesity, mechanical back pain, status post left lateral release and medial placation, hypertension, right torn meniscus, dysthymia, and borderline intellectual functioning. (Id. at 11). The ALJ further found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments contained in 20 C. F. R. Part 404, Subpart P, Appendix 1. (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In determining that Plaintiff did not meet any Listing, the ALJ made the following relevant findings:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Tr. 18-23). The Court now considers the foregoing in light of the record in this case and the issue on appeal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1. Issue

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                a. Whether the ALJ erred in finding that Plaintiff did not meet Listing 12. 05C?

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff argues that the ALJ erred in finding that she does not meet the requirements of Listing 12. 05C. Plaintiff maintains that she has met the criteria of Listing 12. 05C because she has a valid Full Scale I. Q. score of 67 and a physical impairment that imposes additional and significant work-related limitation of function. (Doc. 14 at 5-8). The Commissioner counters, however, that the ALJ properly found that Plaintiff's mental impairments do not meet or medically equal Listing 12. 05C because Plaintiff has not shown that she has deficits in adaptive functioning, which is required in order to meet the Listing. (Doc. 18 at 6-7). Having carefully reviewed the record in this case, the Court finds that the ALJ's decision is not supported by substantial evidence.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As stated above, the Social Security regulations set forth a five-step sequential evaluation process to determine whether a claimant is disabled. At step three, the claimant has the burden of proving that an impairment meets or equals a listed impairment. See Harris v. Commissioner of Soc. Sec. 330 Fed.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Appx. 813, 815 (11th Cir. 2009) (unpublished) (citing Barron v. Sullivan 924 F.2d 227 229 (11th Cir. 1991)). To establish presumptive disability under section 12. 05(C), a claimant must present evidence of "a valid verbal, performance or full scale IQ of 60-70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. " 20 C. F. R. Part 404, Subpart P, Appendix 1 § 12. 05(C). In addition, the claimant must also satisfy the 'diagnostic description' of mental retardation in Listing 12. 05 (the listing category for mental retardation/intellectual disability), which provides that mental retardation "refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i. e the evidence demonstrates or

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        supports onset of the impairment before age 22. " 20 C. F. R. Part 404, Subpart P, Appendix 1, §§ 12. 05. In this Circuit, "generally, a claimant meets the criteria for presumptive disability under section 12. 05(C) when the claimant presents a valid I. Q. score of 60 to 70 inclusive, and evidence of an additional mental or physical impairment that has more than a 'minimal effect' on the claimant's ability to perform basic work activities. " Smith v. Commissioner of Soc. Sec. 535 Fed. Appx. 894, 897 (11th Cir. 2013)(quoting Lowery v. Sullivan 979 F.2d 835 837 (11 Cir. 1992)). Thus, a valid I. Q. score creates a rebuttable presumption that the claimant manifested deficits in adaptive functioning prior to the age of twenty-two. See Hodges v. Barnhart 276 F. 3d 1265, 1268-69 (11th Cir. 2001).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This presumption can be rebutted when the IQ score is inconsistent with record evidence of a claimant's daily activities and behavior. See Popp v. Heckler 779 F.2d 1497 1499-1500 (11th Cir. 1986). Accordingly, the ALJ is tasked with determining whether there is sufficient evidence (relating to plaintiff's daily life) to rebut the presumption. See Grant v. Astrue 255 Fed. Appx 374, 375 (11th Cir. 2007); Hartman v. Colvin 2014 U.S. Dist. LEXIS 91467, *7 (S. D. Ala. July 7, 2014). For example, in Hickel v. Commissioner 539 Fed. Appx. 980 (11th Cir. 2013), the Eleventh Circuit found that the ALJ did not err where the ALJ acknowledged that the claimant had a

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        valid IQ score between 60 and 70, applied the presumption established by Hodges and found that the presumption was rebutted by other evidence that showed that the claimant did not have "deficits in adaptive functioning. " Id 539 Fed. Appx. at 984. In reaching its decision, the court in Hickel noted that the claimant did not dispute that she is a high school graduate; she works part time at a nursery; she drives herself to work; she prepares simple meals and dresses and grooms herself; she attends church regularly; and she socializes with friends. In addition, the Court observed that three medical sources all determined, based on the claimant's better than expected functional capacity, that her mental impairment was more consistent with borderline intellectual functioning than mild mental retardation. Id. at 984-85.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In the case at hand, the undersigned finds, based on a careful review of the record, that the ALJ did not apply the proper legal standard when determining whether Plaintiff met listing 12. 05(C). First of all, the record establishes that Dr. Blanton administered the Wechsler Adult Intelligence Scale-Fourth Edition to Plaintiff on March 16, 2011, and she obtained the following scores: Verbal Comprehension 70, Perceptual Reasoning 71, Working Memory 71, Processing Speed 76, and Full Scale IQ score of 67. (Tr. 12). In his decision, the ALJ does not make clear whether or not he deemed the IQ score to be

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        valid; however, he did state that "in this case, there is no evidence of such alleged IQ prior to age 22. " (Id. ). As noted supra where a claimant presents a valid IQ score, the claimant is entitled to the presumption recognized in Hodges and as a result, is not required to demonstrate deficits in more than one area of adaptive functioning before the age of 22. Accordingly, to the extent the ALJ in this case found that Plaintiff's IQ score was valid, he erred because he did not accord her the presumption recognized in Hodges. See Grant v. Astrue 255 Fed. Appx. 374, 2007 U.S. App. LEXIS 26540 (11th Cir. 2007)(ALJ erred because he did not give plaintiff the benefit of the presumption recognized in Hodges but instead required her to demonstrate deficits in more than one area of adaptive functioning before the age of 22. Upon remand, the ALJ was directed to determine whether there was sufficient evidence to rebut the presumption that the plaintiff manifested deficits in adaptive functioning before the age of 22).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Assuming, arguendo that the ALJ determined that the IQ score was not valid, he did not proffer valid reasons for invalidating the score. In his opinion, the ALJ noted:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Tr. at 12-13).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The fact that Plaintiff may have been referred to Dr. Blanton by her attorney does not in and of itself provide a basis for rejecting the scores from the IQ test administered by Dr. Blanton. Indeed, in Hickel v. Commissioner the Eleventh Circuit rejected a similar rationale and noted that there was nothing in the record to reflect how the medical sources were compensated, and that "generating evidence is the purposes of obtaining opinions from medical sources, whether paid for by the Commissioner or by the claimant. " Hickel 539 Fed. Appx. at 987. The court held that the fact that the one time consultative examiner was retained by the claimant rather than the Commissioner was simply not, standing alone, a valid basis for rejecting his opinion. Id. In this case, there is nothing which reflects who paid for Dr. Blanton's services; however, the fact that he was compensated for his services, and that he was recommended by Plaintiff's counsel, does not standing alone, provide a valid basis for rejecting his opinions nor the results of his IQ testing.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Additionally, in rejecting Dr. Blanton's opinions, and presumably the IQ results, the ALJ noted that Dr. Blanton is not

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        a clinical psychologist, but is a licensed professional counselor who is permitted to administer testing. Again, this is not a valid reason for rejecting Dr. Blanton's opinions or his IQ testing. There is nothing in the record which suggests that Dr. Blanton did not follow proper testing protocol in administering the Wechsler Adult intelligence Scale-IV test. While Dr. Blanton did note that Plaintiff complained that she could not see very well out of her right eye, he opined that the IQ scores were a valid assessment of her current level of intellectual functioning, as there were no distracting factors during the testing, and she appeared to put good effort into the testing. (Tr. 352). In sum, the ALJ failed to provide valid reasons for rejecting the IQ scores.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The undersigned further finds that the ALJ's errors are not harmless because it is not clear that the record evidence would have rebutted the presumption of deficits in adaptive functioning before age 22. First, while two of the consulting medical sources opined that Plaintiff had borderline intelligence, the evidence is undisputed that they did not have the benefit of Plaintiff's IQ scores, nor is there anything to suggest that they administered any IQ testing to Plaintiff. In

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        fact, during Dr. Tocci's mental health examination of Plaintiff, she noted that Plaintiff incorrectly calculated change and multiplication problems, was unable to perform serial threes backwards, and demonstrated a poor fund of information and comprehension. (Id. at 269). Additionally, the record reflects that while Plaintiff took regular classes and attended high school through twelfth grade, she did not graduate due to her inability to pass the English portion of the graduation exam after multiple attempts. Notably, the record reflects that Plaintiff successfully passed the non-English portions of the exam after no less than five attempts. (Id. at 200). Further, the evidence reflects that while Plaintiff has a driver's license, she had to take the oral examination three (3) times before obtaining her license, and she is generally driven by others. Additionally, Plaintiff's work history reveals that she

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        had one fairly short term semi-skilled job involving the operation of a sewing machine in a cap factory, and a string of fast food positions. Further, while Plaintiff is able to care for her own personal needs, and at one point lived alone, her daily activities are fairly restricted, and she relies upon her mother to assist with chores, shopping, etc.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In light of the foregoing, the Court finds that the ALJ's determination that Plaintiff does not meet or medically equal Listing 12. 05C is not based on substantial record evidence. As noted supra the ALJ did not proffer valid reasons for rejecting Plaintiff's IQ scores, and to the extent he did not reject the scores, he did not afford Plaintiff the presumption of deficits in adaptive functioning to which she is entitled. The ALJ likewise failed to determine whether the presumption had been rebutted by the record evidence. Because the ALJ did not apply the correct standard in this case, this case must be REVERSED and REMANDED. See Hartman v. Colvin 2014 U.S. Dist. LEXIS 91467 (S. D. Ala. July 7, 2014)(remanding case where it was far from clear that had the ALJ applied the correct standard, the evidence would have supported the ALJ's finding that the plaintiff did not meet Listing 12. 05 (C)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                V. Conclusion

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        parties, it is hereby ORDERED that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be REVERSED and REMANDED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                DONE this 23rd day of September, 2014.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/ SONJA F. BIVINS        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Plaintiff testified that she lost her house and her car in a fire in 2010; however, it appears that even before the fire, Plaintiff was doing very limited driving. (Id. at 34, 43).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Plaintiff listed no prescription pain medications in her report to the Agency. (Tr. 194).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen 826 F.2d 996 999 (11th Cir. 1987).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The claimant must first prove that he or she has not engaged in substantial gainful activity. The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove an inability to perform their past relevant work. Jones v. Bowen 810 F.2d 1001 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education and work history. Id. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work history. Sryock v. Heckler 764 F.2d 834 836 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F. 3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen 831 F.2d 1007 1011 (11th Cir. 1987) (citing Francis v. Heckler 749 F.2d 1562 1564 (11th Cir. 1985)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Plaintiff's only claim on appeal is that the ALJ erred at step three in finding that she did not meet Listing 12. 05C. Therefore, the Court will address only that issue. For the ALJ's findings at steps four and five of the evaluation process, see Tr. 14-15, 21-23.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 "Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority. " 11TH CIR. R. 36-2.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 On August 1, 2013, the Social Security Administration amended Listing 12. 05 by replacing the words "mental retardation" with "intellectual disability. " See Hickel v. Commissioner of Soc. Sec. 539 Fed. Appx. 980, 982 n. 2 (11 Cir. 2013) (citing 788 Fed. Reg. 46, 499, 46, 501, to be codified at 20 C. F. R. pt. 404, subpt. P, app. 1)). "This change was made because the term 'mental retardation' has negative connotations, and has become offensive to many people. Id. (citations and internal quotation marks omitted). "The Social Security Administration stated that the change does not affect the actual medical definition of the disorder or available programs or services. " Id. (citations and internal quotation marks omitted). As in Hickel, this opinion uses the term "mental retardation" and "intellectual disability" interchangeably.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 At the request of the Agency, Dr. Nina Tocci, Ph. D. conducted a mental examination of Plaintiff on April 7, 2010. Dr. Tocci found that Plaintiff's affect was appropriate, normal and stable, that she was oriented to time, place', person and situation, and that she demonstrated distracted attention and scattered concentration. Dr. Tocci also observed that while Plaintiff demonstrated appropriate thought content, she demonstrated a poor fund of information and poor social judgment. Dr. Tocci also observed that Plaintiff "appeared to be functioning within the borderline range of intellectual ability" and opined that her prognosis was guarded. She assigned Plaintiff a GAF of 60, and opined that she was motivated to participate in the examination. (Tr. 270)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dr. Donald Hinton, Ph. D also completed a Mental RFC Assessment at the request of the Agency on April 13, 2010. (Tr. 286-88). Dr. Hinton reviewed the records and opined that Plaintiff has "Estimated Borderline Intelligence" and "Dysthymia" and that she had moderate limitations in her mental abilities. (Id. ) (emphasis added).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff testified that she lost her house and her car in a fire in 2010; however, it appears that even before the fire, Plaintiff was doing very limited driving. (Id. at 34, 43).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff listed no prescription pain medications in her report to the Agency. (Tr. 194).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen 826 F.2d 996 999 (11th Cir. 1987).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The claimant must first prove that he or she has not engaged in substantial gainful activity. The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove an inability to perform their past relevant work. Jones v. Bowen 810 F.2d 1001 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education and work history. Id. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work history. Sryock v. Heckler 764 F.2d 834 836 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F. 3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen 831 F.2d 1007 1011 (11th Cir. 1987) (citing Francis v. Heckler 749 F.2d 1562 1564 (11th Cir. 1985)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's only claim on appeal is that the ALJ erred at step three in finding that she did not meet Listing 12. 05C. Therefore, the Court will address only that issue. For the ALJ's findings at steps four and five of the evaluation process, see Tr. 14-15, 21-23.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        "Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority. " 11TH CIR. R. 36-2.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        On August 1, 2013, the Social Security Administration amended Listing 12. 05 by replacing the words "mental retardation" with "intellectual disability. " See Hickel v. Commissioner of Soc. Sec. 539 Fed. Appx. 980, 982 n. 2 (11 Cir. 2013) (citing 788 Fed. Reg. 46, 499, 46, 501, to be codified at 20 C. F. R. pt. 404, subpt. P, app. 1)). "This change was made because the term 'mental retardation' has negative connotations, and has become offensive to many people. Id. (citations and internal quotation marks omitted). "The Social Security Administration stated that the change does not affect the actual medical definition of the disorder or available programs or services. " Id. (citations and internal quotation marks omitted). As in Hickel, this opinion uses the term "mental retardation" and "intellectual disability" interchangeably.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        At the request of the Agency, Dr. Nina Tocci, Ph. D. conducted a mental examination of Plaintiff on April 7, 2010. Dr. Tocci found that Plaintiff's affect was appropriate, normal and stable, that she was oriented to time, place, person and situation, and that she demonstrated distracted attention and scattered concentration. Dr. Tocci also observed that while Plaintiff demonstrated appropriate thought content, she demonstrated a poor fund of information and poor social judgment. Dr. Tocci also observed that Plaintiff "appeared to be functioning within the borderline range of intellectual ability" and opined that her prognosis was guarded. She assigned Plaintiff a GAF of 60, and opined that she was motivated to participate in the examination. (Tr. 270)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dr. Donald Hinton, Ph. D also completed a Mental RFC Assessment at the request of the Agency on April 13, 2010. (Tr. 286-88). Dr. Hinton reviewed the records and opined that Plaintiff has "Estimated Borderline Intelligence" and "Dysthymia" and that she had moderate limitations in her mental abilities. (Id. ) (emphasis added).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Barron v. Sullivan, 924 F.2d 227 (11th Cir., 1991)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1991-02-21 Citations: 1
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Popp v. Heckler, 779 F.2d 1497 (11th Cir., 1986)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1986-01-13 Citations: 4
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Jones v. Bowen, 810 F.2d 1001 (11th Cir., 1986)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1986-12-08 Citations: 7
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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