Tracy Torris Hunt v. Social Security Administration, Commissioner

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11884
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-02081-JEO
TRACY TORRIS HUNT,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 17, 2015)
Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Tracy Hunt appeals the district court’s decision affirming the Social Security
Commissioner’s denial of his applications for disability insurance benefits and for
supplemental security income. The Administrative Law Judge (“ALJ”) concluded
that Hunt’s alcohol abuse was a contributing factor material to the ALJ’s disability
determination and, thus, that Hunt was not disabled under the Social Security Act
(“SSA”). Hunt also appeals the denial of his motion for a remand under 42 U.S.C.
§ 405(g). No reversible error has been shown; we affirm.
Our review of the Commissioner’s decision is limited to whether substantial
evidence supports the decision and whether the correct legal standards were
applied. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). “Substantial
evidence is more than a scintilla and is such 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). “If the Commissioner’s decision
is supported by substantial evidence, this Court must affirm, even if the proof
preponderates against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Under this limited standard of review, we may not make fact-findings, re-weigh
evidence, or substitute our judgment for that of the ALJ. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). The claimant bears the burden of proving his
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disability and must produce evidence supporting his claim. See Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
The ALJ uses a five-step process to determine whether the claimant has met
his burden of proving that he is disabled. See Phillips v. Barnhart, 357 F.3d 1232,
1237-39 (11th Cir. 2004). First, the ALJ determines whether the claimant is
engaged in “substantial gainful activity.” If not, the ALJ decides whether the
claimant’s impairment is “severe” and, if so, whether the claimant’s impairment
meets or equals a specified impairment in the Listing of Impairments. If the
claimant has a severe impairment that does not meet or equal a listed impairment,
the ALJ assesses a claimant’s “residual functional capacity” (“RFC”), which
measures whether a claimant can perform past relevant work despite the
impairment. If the claimant is unable to perform past relevant work, the ALJ
determines whether, in the light of the claimant’s RFC, age, education, and work
experience, the claimant can perform other work in the national economy. Id. “If
the claimant cannot make the adjustment to other work,” the claimant is deemed
disabled. Id. at 1239.
If medical evidence exists of a disabled claimant’s alcohol abuse, the ALJ
must then determine whether the claimant’s alcohol abuse was a material
contributing factor to the disability determination. See 20 C.F.R. §§ 404.1535,
416.935(b)(1). The “key factor” in this analysis is whether the claimant would still
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be found disabled if he stopped using alcohol. Id. If the ALJ determines that the
answer to this inquiry is “no,” the claimant is not considered disabled under the
SSA. Id.; 42 U.S.C. § 423(d)(2)(C). The claimant bears the burden of proving that
he would still be disabled even if he stopped using alcohol. Doughty v. Apfel, 245
F.3d 1274, 1275-76 (11th Cir. 2001).
In Hunt’s case, the ALJ applied the initial five-step evaluation process and
determined that Hunt had engaged in no substantial gainful activity since his
application date. The ALJ also determined that Hunt had severe impairments 1 but
that none of Hunt’s impairments met or equaled a Listed Impairment, including the
listed impairment for mental retardation (“Listing 12.05(C)”). The ALJ then
concluded that Hunt was unable to perform his past relevant work or to perform
other work in the national economy and, thus, was disabled.
Given the medical evidence of Hunt’s alcohol abuse, however, the ALJ then
inquired into whether Hunt’s alcohol abuse was a contributing material factor in
the disability determination. Given Hunt’s age, education, work experience, and
RFC, the ALJ determined that -- if Hunt stopped using alcohol -- he could perform
several jobs in the national economy. As a result, the ALJ concluded that Hunt’s
1
The ALJ identified as “severe” the following impairments: degenerative joint disease of the
hips; mild to moderate spondylosis of the lumbar spine; alcohol dependence; alcohol-induced
psychosis; and low borderline intellectual functioning secondary to ongoing alcohol abuse.
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alcohol abuse was a material contributing factor to the disability determination and
that Hunt was therefore not disabled under the SSA.
I.
On appeal, Hunt argues that the ALJ erred in concluding that his limitations
did not meet or equal Listing 12.05(C).2 For a claimant to establish a disability
under Listing 12.05(C), he must show (1) that he has “significantly subaverage
general intellectual functioning with deficits in adaptive functioning” and (2) that
he has “[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.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 12.00A, 12.05; cf. Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
Substantial evidence supports the ALJ’s determination that Hunt failed to
satisfy the criteria for presumptive disability under Listing 12.05(C). Substantial
evidence supports a finding that Hunt suffered no significant deficits -- as required
under the first part of Listing 12.05(C) -- in adaptive functioning. Hunt performed
a wide range of activities of daily living (“ADLs”), including personal grooming,
2
On appeal, Hunt challenges only the ALJ’s determination that he failed to meet the criteria
under Listing 12.05(C). Hunt raises no challenge to the ALJ’s determination that Hunt satisfied
no listed impairment under sections 1.02, 1.04, 12.02, or 12.09: those arguments are abandoned.
See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008).
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dressing, preparing simple meals, driving, shopping, paying bills, counting change,
reading, watching television, and spending time with others. And, to the extent
Hunt alleged difficulty in performing ADLs, he alleged difficulty based on
physical pain, not on his cognitive limitations.
Hunt’s work history is also inconsistent with a finding of mental retardation
under Listing 12.05(C). The record shows that Hunt held consistently a job for 27
years, and nothing evidences that Hunt required or received special
accommodations from his employers. The ALJ committed no error in considering
Hunt’s work history in evaluating the conclusive nature of his low IQ score. See
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (an IQ score is not
conclusive of intellectual disability “where the I.Q. score is inconsistent with other
evidence in the record on the claimant’s daily activities and behavior”); Popp v.
Heckler, 779 F.2d 1497, 1500 (11th Cir. 1986) (same).
The ALJ’s determination is also supported by the medical opinions of two
non-examining psychologists, Drs. Fleece and Gross. Hunt argues, however, that
the ALJ erred by giving greater weight to the opinions of Drs. Fleece and Gross
than to the opinion of an examining psychologist, Dr. Nichols.
Based on a one-time evaluation, Dr. Nichols concluded that Hunt had a full
scale IQ score of 51 and that Hunt functions in the mild range of mental
retardation. In contrast, Dr. Fleece, a state agency psychologist, concluded --
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based on Hunt’s long work history and on his reported ADLs -- that Hunt had low
borderline cognitive functioning. Dr. Fleece commented that the low IQ test score
was implausible given Hunt’s work history, ADLs and given that Dr. Nichols
determined (in spite of Hunt’s low IQ score) that Hunt was only “moderately
compromised” by his cognitive deficits. Dr. Fleece also opined that Hunt’s
intellectual capacity may have been diminished by his ongoing alcohol abuse. Dr.
Gross, a psychologist reviewer with the Social Security Administration, agreed
with Dr. Fleece’s opinion.
In determining how much weight to give a medical opinion, the ALJ
considers, among other things, (1) whether the doctor has examined the claimant;
(2) the degree to which a doctor’s opinion is supported by an explanation and by
medical evidence; and (3) how consistent the doctor’s “opinion is with the record
as a whole.” 20 C.F.R. §§ 404.1527(e), 416.927(e). Although the opinion of an
examining doctor is generally entitled to greater weight than that of a non-
examining doctor, the ALJ may reject any doctor’s opinion if the evidence
supports a contrary conclusion. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.
1985).
Substantial evidence supports the ALJ’s decision to give greater weight to
the opinions of Drs. Fleece and Gross than to the opinion of Dr. Nichols. Dr.
Fleece’s opinion was explained fully, was supported by medical evidence, and was
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consistent with the record as a whole. Meanwhile, Dr. Nichols’s assessment of
Hunt’s cognitive functioning was inconsistent with Hunt’s medical history and
with evidence in the record. 3
Viewing the record as a whole, substantial evidence supports the ALJ’s
determination that Hunt proved no disability under Listing 12.05(C).
II.
The district court committed no error in denying Hunt’s motion to remand
for the agency to consider evidence of Hunt’s school records. Pursuant to the sixth
sentence of 42 U.S.C. § 405(g), the district court may remand a case to the agency
for additional fact-finding “where new, material evidence is adduced that was for
good cause not presented before the agency.” Shalala v. Schaefer, 113 S. Ct. 2625,
2629 n.2 (1993) (emphasis added); see also 42 U.S.C. § 405(g).
Hunt has failed to show sufficient good cause for his delay in attempting to
locate his school records (available since 1981) or for his (or his lawyer’s) delay in
submitting the school records to the Appeals Counsel. In addition, the school
records (which contained Hunt’s IQ test scores when he was 14 years’ old) would
3
Moreover, because Dr. Nichols examined Hunt only once, she was no treating physician; and
her opinion is unentitled to deference. See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.
1987).
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not likely change the outcome of Hunt’s case and, thus, are not “material” evidence
warranting a remand. See Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987)
(new evidence is “material” if it is “relevant and probative so that there is a
reasonable possibility that it would change the administrative result.”).
AFFIRMED.
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