Alice Frame v. Commissioner, Social Security Administration

Case: 13-15347 Date Filed: 01/13/2015 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15347
________________________
D.C. Docket No. 1:12-cv-162-MP-CAS
ALICE FRAME,
Plaintiff–Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 13, 2015)
Before ED CARNES, Chief Judge, DUBINA and GILMAN, * Circuit Judges.
*
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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PER CURIAM:
Alice Frame appeals the district court’s affirmance of the decision by the
Commissioner of Social Security denying her application for disability insurance
benefits and supplemental security income. After carefully reviewing the record,
and after reading the parties’ briefs, we affirm. 1
I.
In June 2006, Frame filed an application for social security disability
benefits. After her application was denied, she sought judicial review of the
Commissioner’s decision in federal court. At the Commissioner’s request, the
district court remanded her application to the Appeals Council under sentence four
of 42 U.S.C. § 405(g).
In March 2012, following a hearing on Frame’s application, the
administrative law judge (“ALJ”) concluded that she was not disabled and denied
her benefits claims. Because the Appeals Council did not assume jurisdiction, the
ALJ’s decision became the Commissioner’s final decision and is thus subject to
judicial review. See 20 C.F.R. §§ 404.984, 416.1484.
Once more, Frame sought judicial review of the denial of her benefits
application. The district court affirmed the ALJ’s decision. This appeal followed.
1
Though originally scheduled for oral argument, this appeal was removed from the oral-
argument calendar by unanimous agreement of the panel. See 11th Cir. R. 34-3(f).
2
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II.
In social security appeals, we review de novo the district court’s judgment
regarding whether substantial evidence exists to support the Commissioner’s final
decision. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). During
this review, we do not reweigh the evidence, decide facts anew, make credibility
determinations, or substitute our judgment for the ALJ’s. Id. at 1211, 1213. The
ALJ’s factual findings are conclusive if supported by “substantial evidence.” 42
U.S.C. § 405(g). Substantial evidence means more than a scintilla but less than a
preponderance; it is enough “relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436,
1439 (11th Cir. 1997)) (internal quotation mark omitted). In the end, so long as
substantial evidence exists, we must affirm the ALJ’s decision even if the evidence
preponderates against it. Id. at 1158–59.
III.
The Social Security Act makes disability insurance benefits and
supplemental security income available to a claimant who is “under a disability” or
“disabled.” 42 U.S.C. §§ 423(a), 1382(a). The Act defines disability and disabled
as being “unable to engage in any substantial gainful activity” because of a
“medically determinable physical or mental impairment” that is expected to result
in death or that has lasted (or is expected to last) for at least 12 straight months. Id.
§§ 423(d)(1)(A), 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
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A claimant seeking social security disability benefits must prove that she is
disabled. Moore, 405 F.3d at 1211. To do so, she must shoulder the “very heavy
burden” of showing that she has “both a qualifying disability and an inability to
perform past relevant work.” Id.
To decide whether a claimant is disabled, the ALJ uses a “five-step
sequential evaluation process.” 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1).
Throughout this process, the claimant must introduce evidence to support her
benefits application. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
The evaluation moves from step to step until the ALJ finds that the claimant is
either disabled or not disabled. §§ 404.1520(a)(4), 419.920(a)(4).
These are the steps in this process:
(1) determine whether the claimant is currently engaged in substantial
gainful activity;
(2) determine whether the claimant’s alleged impairment (or combination
of impairments) is “severe”;
(3) determine whether the claimant’s severe impairment satisfies or
medically equals an impairment listed in 20 C.F.R. pt. 404, subpt. P,
app. 1;
(4) determine whether the claimant has the residual functional capacity to
perform past relevant work; and
(5) determine whether the claimant can perform other work in the
national economy given her residual functional capacity, age,
education, and work experience.
§§ 404.1520(a)(4)(i)–(iv), 416.920(a)(4)(i)–(v).
To prevail at step three, the claimant must provide specific evidence—such
as medical signs, symptoms, or laboratory-test results—showing that her
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impairment meets or medically equals a listed impairment. Sullivan v. Zebley, 493
U.S. 521, 530, 110 S. Ct. 885, 891 (1990). “For a claimant to show that h[er]
impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Id. But a claimant whose severe impairment satisfies or
medically equals a listed impairment is “conclusively presumed to be disabled
based on his or her medical condition.” Crayton v. Callahan, 120 F.3d 1217, 1219
(11th Cir. 1997). Of course, even if a claimant cannot prove that she is disabled at
step three, she may do so at steps four and five. See Phillips v. Barnhart, 357 F.3d
1232, 1238–40 (11th Cir. 2004).
A.
To meet listing 12.05 (“intellectual disability” 2), “a claimant must at least
(1) have significantly subaverage general intellectual functioning; (2) have deficits
in adaptive behavior; and (3) have manifested deficits in adaptive behavior before
age 22.” Crayton, 120 F.3d at 1219. These requirements are referred to as the
listing’s “diagnostic criteria.” See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00
(“Listing 12.05 contains an introductory paragraph with the diagnostic description
2
Effective September 3, 2013, the Social Security Administration replaced the term
mental retardation with the term intellectual disability as a listed impairment. Change in
Terminology: “Mental Retardation” to “Intellectual Disability,” 78 Fed. Reg. 46,499, 46,4501
(Aug. 1, 2013) (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. at 46,499. But this change “d[id] not affect the actual medical definition of
the disorder or available programs or services.” Id. at 49,500. So while the ALJ, whose decision
issued before the change took effect, and the parties use the old terminology, we follow the
agency’s new nomenclature.
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for [intellectual disability].”) In addition to satisfying the diagnostic criteria, a
claimant must meet one of the four severity requirements in paragraphs A through
D of the listing. See id. § 12.05. Under paragraph C, the only paragraph at issue
here, a claimant must show that she has both “[a] valid verbal, performance, or full
scale IQ of 60 through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function.”
A valid IQ score of 60 to 70 satisfies the first prong of paragraph C and
creates a rebuttable presumption that the claimant satisfies the diagnostic criteria
for intellectual disability. See Hodges v. Barnhart, 276 F.3d 1265, 1268–69 (11th
Cir. 2001). At the same time, it is well established that such a presumption does
not arise where a qualifying IQ score is inconsistent with other record evidence
concerning her daily activities and behavior. Lowery v. Sullivan, 979 F.2d 835,
837 (11th Cir. 1992) (citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir.
1986)). But once the ALJ accepts an IQ score as valid and finds that the claimant’s
impairments meet or medically equal the other criteria of listing 12.05C, the
disability determination cannot be based on the claimant’s age, education, or work
experience. Id.
In sum, a claimant proves that she meets listing 12.05C by establishing the
diagnostic criteria for intellectual disability, including deficits in adaptive
functioning; showing onset before age 22; producing a valid, qualifying IQ score;
and exhibiting the requisite deficits in work-related functioning.
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B.
Here, Frame injured her neck in 2002 and underwent surgery in January
2003. She returned to work the next month and continued to work until 2006. She
contends that she became disabled in May 2006 at age 43. Her disability claim
was initially based on the neck injury and resulting surgery, herniated discs, low-
back pain, cardiovascular muscle spasms, high blood pressure, and depression.
In April 2009, Frame took a Wide Range Intelligence Test (WRIT)
administered by Rick Robinson, a vocational rehabilitation counselor. Frame
received the following scores: verbal (crystallized) IQ of 65, visual (fluid) IQ of
85, and general IQ of 71. According to the report accompanying her test results,
Frame’s scores corresponded to intelligence profiles of very low, low average, and
borderline, respectively. 3 The report did not opine about the validity of these
scores.
In January 2012, Frame had a hearing before an ALJ on her benefits
application. She testified about her health impairments, memory problems, and
limited education. Dr. Hershel Goren, a neurologist and medical expert, testified
that Frame’s impairments met the requirements of listing 12.05C because she had a
verbal IQ of 65 and additional severe physical impairments.
Two months later, the ALJ denied Frame’s benefits application, finding that
she was not disabled under the Social Security Act. The ALJ determined that
3
When multiple IQ scores are derived from a standard general intelligence test in the
Wechsler series, the ALJ uses “the lowest of these in conjunction with 12.05.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.00D6c. Here, therefore, the relevant score is Frame’s verbal
(crystalized) IQ of 65.
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Frame satisfied steps one and two of the sequential review. That is, she was not
engaged in substantial gainful activity and had the following severe impairments:
degenerative disc disease of the cervical spine, bipolar affective disorder,
neuropathy, pain disorder, borderline intellectual function, and panic attacks. But
despite Dr. Goren’s testimony, the ALJ determined that she did not meet the
criteria for intellectual disability under listing 12.05C.
At step four, the ALJ determined Frame’s residual functional capacity. And
based on a vocational expert’s answer to a hypothetical question about a person
with characteristics like Frame’s, the ALJ found that Frame was not disabled
because she could perform her past relevant work. See Jones v. Apfel, 190 F.3d
1224, 1230 (11th Cir. 1999) (explaining that an ALJ may rely solely on the
testimony of a vocational expert in making stage-five determination).
C.
On appeal, Frame does not challenge the ALJ’s assessment of her residual
functional capacity, nor does she object to the ALJ’s reliance on the vocational
expert’s testimony. But she does take issue with the ALJ’s step-three analysis. In
her view, the ALJ’s finding that she does not meet the requirements of listing
12.05 was not supported by substantial evidence. We disagree.
The ALJ concluded that Frame did not meet the criteria of listing 12.05C
because she failed to present a valid, qualifying IQ score. 4 The ALJ rejected this
4
The ALJ also concluded that Frame had not proven that she met the diagnostic criteria
of listing 12.05. Specifically, the ALJ found that
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score for two reasons. First, he found that this score was inconsistent with the
findings of Dr. Jeff Gedney, her treating psychologist. Specifically, in February
2007, Dr. Gedney described Frame’s intelligence, global executive function,
insight, and judgment as “normal.” In June 2008, he concluded that she did not
have a “low IQ or reduced intellectual functioning.” And in May 2009, he
characterized her level of dysfunction during the previous month—when she took
the IQ test—as only “moderate.”5 Second, the ALJ noted that the report
accompanying her IQ test did not comment on the test’s validity.
Although the ALJ’s step-three analysis rested on the invalidity of her IQ test,
Frame does not argue on appeal that her score is valid. Instead, she appears to rely
on the score’s mere existence and the testimony of a nonexamining physician, Dr.
Goren. In any event, we conclude that the ALJ’s conclusion—that Frame’s IQ
score was invalid—was supported by substantial evidence.
there is no evidence that shows significantly sub-average general intellectual functioning
with deficits in adaptive functioning initially manifested during the developmental
period. Indeed, there is no evidence of deficits in the development period. Moreover,
[Frame] has a demonstrated history of remarkably good adaptive functioning. In fact, the
record describes her prior occupations wherein she worked full time at different jobs. In
one job, [she] had to select parts in a stock room by using alphanumeric indicators. In
another job, [she] was the leader of a crew and was responsible for making sure the parts
were manufactured correctly. These jobs show significant capabilities and functioning.
Because we conclude that substantial evidence supported the ALJ’s finding that Frame’s IQ
score is invalid, we need not address whether substantial evidence also supported this reason for
finding that Frame failed to prove that she met the criteria of listing 12.05.
5
The ALJ also noted that Frame’s IQ score was inconsistent with the conclusions of
another examining psychologist, Dr. Linda Abeles. In November 2006, Dr. Abeles examined
Frame and concluded that she exhibited borderline intellectual functioning and that she could
likely obtain and maintain employment with appropriate treatment.
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For starters, the ALJ did not err by considering whether Frame’s IQ score
was consistent with the other evidence in the record. The regulations provide that
the results of standardized intelligence tests “are only part of the overall
assessment.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00D6a. And while such test
results are “essential” for all claims of intellectual disability not covered by listing
12.05A, id. § 12.00D6b, the regulations “do[ ] not require the ALJ to make a
finding of [intellectual disability] based on the results of an IQ test alone,” Popp,
779 F.2d at 1499. Indeed, they require the ALJ to “examine the results in
conjunction with other medical evidence and the claimant’s daily activities and
behavior.” Id. at 1500. So by considering the medical evidence of Frame’s
examining physicians, the ALJ did not err. Nor did the ALJ err by according little
weight to Dr. Goren’s testimony that Frame met the criteria of listing 12.05C. See
Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (concluding that the
opinions of reviewing, nonexamining physicians, “when contrary to those of
examining physicians, are entitled to little weight”); see also 20 C.F.R.
§§ 404.1527(d)–(e), 416.927(d)–(e).
Next, the regulations make clear that “the narrative report that accompanies
the test results should comment on whether the IQ scores are considered valid and
consistent with the developmental history and the degree of functional limitation.”
§ 12.00D6a. Because a comment about the IQ test’s validity is not required, it is
unlikely that the ALJ could reject Frame’s verbal IQ score on this basis alone. But
this does not mean that the report’s lack of comment could not factor into his
analysis. After all, reports that “[do] not include the quantum of medical evidence
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required to document whether the results of the intelligence test were consistent
with the plaintiff’s daily behavior” are generally given less weight than those that
“ma[k]e the required specific findings regarding plaintiff’s mental condition, and
extensively discuss[ ] her personal and medical history and current lifestyle in
support of [their] findings.” Strunk v. Heckler, 732 F.2d 1357, 1360 (7th Cir.
1984). 6
IV.
Given our highly deferential review, we hold that a reasonable person could
conclude from the record that Frame’s verbal IQ score of 65 was invalid. See
Crawford, 363 F.3d at 1158–59. Accordingly, we conclude that substantial
evidence supported the ALJ’s conclusion that Frame did not meet listing 12.05C.
And because Frame did not challenge the ALJ’s step-four analysis, we affirm the
denial of her benefits application.
AFFIRMED.
6
As Frame notes, we have recognized that IQ is presumed to remain fairly constant
throughout life. Hodges, 276 F.3d at 1268–69. For this reason, we have held that a valid IQ
score after age 22 creates a rebuttable presumption that the claimant satisfies the diagnostic
criteria of listing 12.05. See id.
But contrary to Frame’s suggestion, Hodges does not apply here. In that case, the ALJ
accepted the IQ score determined by the examining physician “as a valid assessment of Hodges’
mental capabilities at age 49.” Id. at 1268. Not so here. Thus, the ALJ did not err by failing to
presume that Frame satisfied the diagnostic criteria of listing 12.05.
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