James E. Wilbon v. Commr. of Social Security ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2006
THOMAS K. KAHN
No. 05-13578
CLERK
Non-Argument Calendar
_________________________
D.C. Docket No. 04-00296-CV-FTM-33-SPC
JAMES E. WILBON,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________
(May 18, 2006)
Before EDMONDSON, Chief Judge, TJOFLAT and MARCUS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant James E. Wilbon appeals the district court’s affirmance
of the Commissioner of Social Security’s denial of benefits for the period of 16
March 1991 through 31 December 1999.1 No reversible error has been shown; we
affirm.
Plaintiff has not worked at least since 16 March 1991. He seeks benefits
claiming disability due to mental retardation and a host a physical conditions,
including a peptic ulcer, shortness of breath, and blackouts. When Plaintiff last
worked, he worked as a construction worker, cement mason apprentice, and
plasterer.
To show disability under the Social Security Act, a claimant must show, for
a prescribed duration, an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment....” 42
U.S.C. § 423(d)(1)(A). The Social Security Regulations outline a five-step
sequential evaluation process for determining whether a claimant is disabled. 20
C.F.R. § § 404.1520, 416.920; Jones v. Apfel, 190 F.3d 1224, 1228; (11th Cir.
1999). In steps one and two, the claimant must show that he has not engaged in
substantial gainful activity, Jones, 190 F.3d at 1228; and he must prove a severe
1
In connection with an earlier application, the Commissioner determined that Plaintiff was not
disabled at any time through 15 March 1991. In connection with a later application, the
Commissioner determined that Plaintiff was disabled as of 1 January 2000.
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impairment or combination of impairments. Id. In step three, the impairment is
compared to listed impairments; if the impairment meets or equals a listed
impairment, disability is automatically established. Id. If step three’s impairment
listing does not establish disability, in step four claimant must show an inability to
perform past relevant work. If claimant makes a sufficient showing of inability to
perform past relevant work, in step five the Commissioner bears the burden of
showing other available work that claimant is able to perform. Id.The Administrative Law Judge (“ALJ”) concluded that Plaintiff had not
worked during the relevant period and suffered severe impairments based on his
mild mental retardation and history of peptic ulcer disease. The first two steps in
the evaluative process are not disputed. The ALJ determined, however, that
Plaintiff failed to show that his impairments, singly or in combination, met or
equaled the level of severity set out in the Listing of Impairments, 20 C.F.R. Part
404, Subpart P, Appendix 1, 12.05(B) and (C) (Listings 12.05(B) and (C)(step
three). The ALJ also concluded that Plaintiff retained the residual functional
capacity to perform a wide range of work, including his past relevant work (step
four). The ALJ determined that Plaintiff was not disabled under the Social
Security Act during the period under review.
3
In this appeal, Plaintiff argues that the ALJ erred in concluding that he did
not meet Listing 12.05(B) and (C) because he either had (i) an intelligence
quotient (IQ) score of 59 or below (which would make him automatically disabled
under Listing 12.05(B); or (ii) an IQ score in the 60 to 70 range, combined with
peptic ulcer disease, acute pancreatitis, and other cognitive impairments, which
significantly limited his functional ability to work (which would make him
disabled under Listing 12.05(C)). To “meet” a Listing in step three, a claimant
must provide medical reports documenting that the conditions meet the specific
criteria of the Listings and the duration requirement. See 20 C.F.R. § §
404.1525(a)-(d), 416.925(a)-(d). To “equal” a Listing in step three, the medical
findings must show an impairment at least equal in severity and duration to the
criteria set out in a listed impairment. See id. § § 404.1526(a), 416.926(a). The
level of severity of mental retardation under Listing 12.05(B) is met when a
claimant proffers a valid verbal, performance, or full scale IQ of 59 or less; the
level of severity under Listing 12.05(C) is met when a claimant proffers a valid
verbal, performance, or full scale IQ of 60 through 70 and suffers from an
impairment that imposes an additional and significant work-related limitation of
function which more than minimally or slightly effects the claimant’s ability to do
basic work. See Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir.
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1985). A claimant who contends that he has an impairment that meets or equals a
Listing bears the burden of presenting evidence establishing how his impairment
meets or equals that Listing. See Wilkinson o/b/o Wilkinson v. Bowen, 847 F.2d
660, 662 (11th Cir. 1987).
We review a social security case to determine whether the ALJ’s decision is
supported by substantial evidence and whether the correct legal standards were
applied. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).
“Substantial evidence is defined as more than a scintilla, i.e., evidence that must
do more than create a suspicion of the existence of the fact to be established, and
such relevant evidence as a reasonable person would accept as adequate to support
the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal
citation omitted). We may not re-weigh the evidence or substitute our own
judgment for that of the ALJ, even if we were to conclude that the evidence
preponderates against the ALJ’s decision. Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).
The record discloses three sets of IQ scores. Dr. Rosen reported scores of
68 verbal; 70 performance; and 68 full scale.2 Dr. Crowell reported scores of 54
2
The ALJ discredited Dr. Rosen’s subjective evaluation of Plaintiff’s condition but concluded that
objective testing performed by Dr. Rosen was not also untrustworthy.
5
verbal; 65 performance; and 55 full scale, but also noted that Plaintiff had been
less than completely forthright in relating his personal history. Dr. Borkosky
reported scores of 66 verbal; 68 performance; and 64 full scale. Plaintiff offers no
argument that Dr. Crowell’s scores are more reliable than other scores in the
record. Instead, Plaintiff argues that the lowest score must be used.
Where a series of IQ scores customarily are generated by a single test
administration, the regulations require that the lowest of those scores be used in
conjunction with Listing 12.05. 20 C.F.R. Pt. 404, Supt. P, App. 1, §
12.00(D)(6)(c) (“In cases where more than one IQ is customarily derived from the
test administered ..., we use the lowest of these in conjunction with 12.05");
Hodges v. Barnhart, 276 F.3d 1265, 1268 n.1 (11th Cir. 2001). Under this rule, Dr.
Crowell’s scores are considered in the below 59 range, even though the
performance score was 65. But the “lowest score” rule does not address which IQ
score an ALJ should rely upon when multiple sets of tests have been administered.
We see no error in the ALJ’s consideration of the multiple IQ scores generated by
different test administrations. Viewed in the light of the full record, substantial
evidence supports the ALJ’s finding that Plaintiff’s IQ score was in the 60 to 70
range.
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Nor did the ALJ err in finding that Plaintiff failed to meet the criteria for
presumptive disability under Listing 12.05(C). Plaintiff’s contentions of pain
caused by peptic ulcer disease and acute pancreatitis were unsupported by the
objective clinical findings or by the opinions of treating and consultant sources.
The ALJ concluded that Plaintiff’s claims of pain and physical infirmity were not
credible. The medical records, together with the testimony of the medical
examiner and the vocational expert, show substantial record evidence in support of
the ALJ’s finding that Plaintiff suffered from no additional physical or mental
impairment that imposed an additional and significant work-related limitation of
function.
We have considered Plaintiff’s other arguments and find them to be without
merit.
AFFIRMED.
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