Case: 17-12414 Date Filed: 02/02/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12414
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-00200-WTH-GRJ
JAMES H. MABREY,
Plaintiff-Appellant,
versus
ACTING COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 2, 2018)
Before MARCUS, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
James H. Mabrey appeals the district court’s order affirming the
administrative law judge’s (“ALJ”) denial of disability insurance benefits and
supplemental security income, under
42 U.S.C. §§ 405(g), 1383(c)(3). On appeal,
Case: 17-12414 Date Filed: 02/02/2018 Page: 2 of 9
Mabrey argues that: (1) the ALJ erred in failing to order a new IQ test to assess
Mabrey’s disability since his school records, which listed his IQ as 57, plus his
history as a day laborer triggered the ALJ’s duty to fully and fairly develop the
record to decide whether Mabrey had a qualifying impairment; (2) the ALJ erred in
finding he had past relevant work as a motor vehicle dispatcher and construction
worker; and (3) the ALJ erred in mechanically applying the Medical-Vocational
Guidelines (the “grids”) to find that Mabrey was not disabled because the grids
would have directed a finding of disability five months later, when Mabrey would
have reached the advanced age category. After thorough review, we affirm.
We review de novo the legal principles upon which the ALJ relied, but are
limited to assessing whether the ALJ’s resulting decision is supported by
substantial evidence. Henry v. Comm’r of Soc. Sec.,
802 F.3d 1264, 1266–67
(11th Cir. 2015). In social security cases where the ALJ denies benefits and the
Appeals Council denies review, we review the ALJ’s decision as the
Commissioner’s final decision.
Id. at 1267. Our review is the same as that of the
district court, meaning we neither defer to nor consider any errors in the district
court’s opinion.
Id. Issues not raised in an appellate brief are deemed abandoned.
Fla. Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ., Inc.,
830 F.3d 1242, 1256 (11th
Cir. 2016). Irrelevant errors are harmless and do not require reversal or remand.
Diorio v. Heckler,
721 F.2d 726, 728 (11th Cir. 1983).
2
Case: 17-12414 Date Filed: 02/02/2018 Page: 3 of 9
Under the substantial evidence standard, we will affirm the ALJ’s decision if
there exists relevant evidence that a reasonable person would accept as adequate to
support a conclusion. Henry, 802 F.3d at 1267. We will not decide the facts anew,
make credibility determinations, or re-weigh the evidence. Id. In determining
whether a claimant is disabled, the ALJ must consider the evidence as a whole. Id.
We must affirm the ALJ’s decision if it is supported by substantial evidence, even
if the evidence preponderates against the ALJ’s findings. Id.
First, we are unpersuaded by Mabrey’s claim that the ALJ erred in failing to
order Mabrey a new IQ test to assess his disability. An ALJ uses a five-step,
sequential evaluation process to decide whether a claimant is disabled, examining
whether: (1) the claimant is currently engaged in substantial gainful activity; (2)
the claimant has a severe impairment or combination of impairments; (3) the
impairment meets or equals the severity of the specified impairments in the Listing
of Impairments; (4) based on a residual functional capacity (“RFC”) assessment,
the claimant can perform any of his past relevant work despite the impairment; and
(5) there are significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work experience.
Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1178 (11th Cir. 2011).
The Listing of Impairments describes, for each major body system, the
impairments that are considered severe enough to prevent a person from doing any
3
Case: 17-12414 Date Filed: 02/02/2018 Page: 4 of 9
gainful activity. Wilson v. Barnhart,
284 F.3d 1219, 1224 (11th Cir. 2002). 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 Listing’s
specific criteria and duration requirement.
Id. To “equal” a Listing, the medical
findings must be at least equal in severity and duration to the listed findings.
Id.
Under the regulations in effect when the ALJ issued her opinion, the § 12.05
mental-retardation listing required a showing that the claimant: (1) had
significantly subaverage general intellectual functioning; (2) had deficits in
adaptive behavior; and (3) had manifested deficits in adaptive behavior before age
22. Crayton v. Callahan,
120 F.3d 1217, 1219 (11th Cir. 1997); 20 C.F.R. Pt. 404,
Subpt. P, App. 1, §§ 12.00(A)(3), 12.05 (2013). Listing 12.05B further required a
“valid verbal, performance, or full scale IQ of 59 or less.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.05B (2013); id. § 12.00A (noting that meeting the mental-
retardation listing required a showing that the impairment satisfied both the
diagnostic description in the introductory paragraph and one of the criteria set out
in subsections A, B, C, and D); id. § 12.00D(6)(b) (noting that “[s]tandardized
intelligence test results [were] essential to the adjudication of all cases of mental
retardation that [were] not covered under the provisions of 12.05A”). An IQ test is
valid if it is a “test[] of general intelligence that [has] a mean of 100 and a standard
deviation of 15; e.g., the Wechsler series.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
4
Case: 17-12414 Date Filed: 02/02/2018 Page: 5 of 9
12.00D(6)(b) (2013). Generally, the claimant meets the criteria for presumptive
disability under section 12.05B when the claimant presents a valid IQ score of 59
or less. Crayton,
120 F.3d at 1219–20. Because IQ remains fairly constant
throughout life, an IQ score need not be obtained before the age of 22 to invoke the
rebuttable presumption that the claimant manifested deficits in adaptive behavior
before age 22. Hodges v. Barnhart,
276 F.3d 1265, 1268−69 (11th Cir. 2001).
However, a valid IQ score need not be conclusive of mental retardation where the
IQ score is inconsistent with other evidence in the record on the claimant’s daily
activities and behavior. Lowery v. Sullivan,
979 F.2d 835, 837 (11th Cir. 1992).
The ALJ has a basic duty to develop a full and fair record, which requires
the ALJ to “scrupulously and conscientiously probe into, inquire of, and explore
for all relevant facts.” Henry, 802 F.3d at 1267 (quotation omitted). Remand for
further factual development is proper when the record reveals evidentiary gaps that
result in unfairness or clear prejudice. Id. But an ALJ is not required to order a
consultative examination as long as the record contains sufficient evidence for the
ALJ to make an informed decision. Ingram v. Comm’r of Soc. Sec. Admin.,
496
F.3d 1253, 1269 (11th Cir. 2007). Moreover, since the claimant bears the burden
of proving he is disabled, a claimant is not entitled to relief on a claim that the ALJ
failed to develop the record when the ALJ requested evidence that the claimant
failed to provide. Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003).
5
Case: 17-12414 Date Filed: 02/02/2018 Page: 6 of 9
Here, the ALJ did not err in failing to further develop the record on
Mabrey’s alleged intellectual deficits. For starters, when the ALJ attempted to
expand the record, Mabrey did not carry his burden to submit the documentary
evidence the ALJ requested.
Id. Specifically, the ALJ asked Mabrey whether he
was in special education classes in school and whether the “California” test listed
on his transcript was a valid IQ test, and then told Mabrey to file additional
documentation after the hearing to support his answers. When Mabrey filed
additional education records, they did not bear out his claims that he had taken
special education classes for one year or that his California test qualified as a valid
IQ test with an appropriate mean and standard deviation. 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 12.00D(6)(b) (2013). Indeed, Mabrey admits his California test was
not an IQ test, much less a valid IQ test. Thus, Mabrey did not carry his burden to
establish an intellectual disability, despite the ALJ’s attempt to develop the record.
In addition, the record contained sufficient evidence for the ALJ to make an
informed determination that Mabrey did not suffer from an intellectual disability,
making further record development unnecessary. Ingram,
496 F.3d at 1269. The
vocational expert testified that based on Mabrey’s description of his prior work
experience, Mabrey had previously performed semiskilled work as a construction
worker and skilled work as a motor-vehicle dispatcher. Mabrey testified that he
had passed a written driver’s test, had been able to drive his friend to the store, and
6
Case: 17-12414 Date Filed: 02/02/2018 Page: 7 of 9
could perform a variety of tasks around the house without assistance. And no
medical records indicated that Mabrey might suffer from an intellectual disability.
Mabrey points to one record indicating that he had less-than-perfect memory and
was unable to spell “world” backwards, but that evidence does not suggest that he
had a diagnosable intellectual deficiency. Rather, the relevant evidence about
Mabrey’s daily activities, work history, and medical history supported the IJ’s
reasonable conclusion that Mabrey did not have an IQ of 57, and was more than
sufficient for the ALJ to make an informed determination about Mabrey’s alleged
intellectual disability without further developing the record. Ingram,
496 F.3d at
1269. Moreover, even if the ALJ erred by concluding that an IQ score obtained
during adulthood was not relevant to the disability analysis, this error was harmless
because the record as a whole supported the ALJ’s conclusion that Mabrey did not
have an intellectual disability. Diorio,
721 F.2d at 728.
We are also unconvinced by Mabrey’s claim that the ALJ erred in assessing
his past relevant work. Where there is conflict between the Dictionary of
Occupational Titles (“DOT”) and a vocational expert’s testimony, an ALJ may rely
solely on a vocational expert’s testimony. See Jones v. Apfel,
190 F.3d 1224,
1226, 1229–30 (11th Cir. 1999).
In this case, the ALJ’s conclusions about Mabrey’s previous construction
and motor-vehicle dispatcher jobs were irrelevant because the ALJ concluded that
7
Case: 17-12414 Date Filed: 02/02/2018 Page: 8 of 9
he could not perform any past relevant work. Because the record reveals that the
ALJ concluded that Mabrey could not perform any past relevant work, it squarely
contradicts Mabrey’s claim that the ALJ had found that he had past relevant work
as a motor-vehicle dispatcher. Accordingly, any error on this point would have
been harmless and does not require reversal or remand. Diorio,
721 F.2d at 728.
Similarly, we reject Mabrey’s argument that the ALJ erred in mechanically
applying the “grids” to find that Mabrey was not disabled. As we’ve said, the final
step of the sequential analysis asks whether there are significant numbers of jobs in
the national economy that the claimant can perform, given his residual functional
capacity, age, education, and work experience. Winschel,
631 F.3d at 1178. An
ALJ may determine whether a claimant has the ability to adjust to other work in
the national economy by either applying the grids or using a vocational expert.
Phillips v. Barnhart,
357 F.3d 1232, 1239–40 (11th Cir. 2004). The grids provide
an alternate path to qualify for disability benefits when an applicant’s impairments
do not meet the requirements of the listed qualifying impairments.
Id. at 1240.
They allow adjudicators to consider factors like age, confinement to sedentary or
light work, inability to speak English, educational deficiencies, and lack of job
experience in assessing a disability.
Id. Each factor can independently limit the
number of jobs realistically available to an individual, and combinations of the
factors yield a statutorily-required finding of “Disabled” or “Not Disabled.”
Id.
8
Case: 17-12414 Date Filed: 02/02/2018 Page: 9 of 9
Where the ALJ has applied the age grids in a mechanical fashion, a claimant
should be given an opportunity to make a proffer of evidence on his ability to
adapt. Patterson v. Bowen,
799 F.2d 1455, 1458–59 (11th Cir. 1986). If he makes
a proffer of substantial evidence that an ALJ could find credible and tending to
show that the claimant’s ability to adapt to a new work environment is less than the
level established under the grids for persons his age, a court is required to remand
the case for reconsideration of the age/ability-to-adapt issue.
Id. If, on the other
hand, the claimant does not make such a proffer, the ALJ’s mechanistic use of the
age grids would be harmless error and there would be no need to remand.
Id.
Here, the record belies Mabrey’s claim that the ALJ mechanically applied
the grids. The ALJ appropriately relied on a vocational expert’s testimony, rather
than the grids, in concluding that Mabrey could make a successful adjustment to
other work that existed in the national economy. Phillips,
357 F.3d at 1239–40.
Further, even if Mabrey’s alleged IQ scores constituted a factual proffer that a
higher age category applied, the ALJ appropriately concluded, as we’ve already
held, that other record evidence conflicted with Mabrey’s IQ allegations.
Accordingly, any error in applying the grids would have been irrelevant and
harmless. Diorio,
721 F.2d at 728; Patterson,
799 F.2d at 1458–59.
AFFIRMED.
9
