Derrick L. Harris v. Commr. of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15457 MAY 22, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00339-CV-J-33-MCR
DERRICK L. HARRIS,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 22, 2009)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Derrick L. Harris appeals from the district court’s order affirming the
Commissioner’s denial of his application for disability benefits, 42 U.S.C.
§ 405(g). Harris argues the record shows he met the requirements for a finding of
mental retardation under Listing 12.05(C) or 12.05(D) and, therefore, was entitled
to disability benefits. He asserts that he repeated grades, never graduated high
school, had a verbal I.Q. of 66, and had other indicia of retardation. Additionally,
Harris contends that Doctor Clifton, a consultative psychologist, found he was
severely impaired, and the Administrative Law Judge (ALJ) erred by not finding
him eligible for benefits.
We review the ALJ’s decision “to determine if it is supported by substantial
evidence and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004) (quotation omitted). We “may not decide
the facts anew, reweigh the evidence, or substitute [our] judgment for that of the
Commissioner,” but rather we “must defer to the Commissioner’s decision if it is
supported by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir.
1996) (quotations omitted). “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.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
Substantial evidence is “less than a preponderance, but rather such relevant
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evidence as a reasonable person would accept as adequate to support a
conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
The Social Security regulations set forth the following five-step “sequential
evaluation” process to determine whether a claimant is disabled: (1) the disability
examiner determines whether the claimant is engaged in “substantial gainful
activity”; (2) if not, the examiner decides whether the claimant’s condition or
impairment is “severe,” i.e., whether it significantly limits the claimant’s physical
or mental ability to do basic work activities; (3) if so, the examiner decides
whether the claimant’s impairment meets or equals the severity of the specified
impairments in the Listing of Impairments, thereby precluding any gainful work
activity; (4) if the claimant has a severe impairment that does not meet or equal the
severity of an impairment in the Listing of Impairments, the examiner assesses a
claimant’s residual functional capacity (RFC), which measures whether a claimant
can perform past relevant work despite the impairment; (5) if the claimant is
unable to do past relevant work, the examiner determines whether in light of RFC,
age, education, and work experience, the claimant can perform other work. Phillips
v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004); 20 C.F.R. § 404.1520.
The claimant has the burden of proving at Step 3 that an impairment meets
or equals a listed impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir.
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1991). “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 specific criteria of the Listings and the duration requirement.” Wilson v.
Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). The ALJ must state with
particularity the weight given the different medical opinions and the reasons
therefor, and failure to do so is reversible error. Sharfarz v. Bowen, 825 F.2d 278,
279 (11th Cir. 1987). An ALJ may reject any medical opinion if the evidence
supports a contrary finding. Id. at 280.
Listing 12.05 “contains an introductory paragraph with the diagnostic
description for mental retardation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 at
§ 12.00(A). The impairment must satisfy the diagnostic description in the
introductory paragraph and any one of the four sets of criteria described in section
12.05 to meet the listing requirements. Id. Listing 12.05 defines mental
retardation as “significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested” before age 22. Id. at 12.05.
“To be considered for disability benefits under section 12.05, 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 v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
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Listing 12.05(C) requires “[a] valid verbal, performance, or full scale I.Q. of
60 through 70 and a physical or other mental impairment imposing an additional
and significant work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1 at § 12.05(C). To meet 12.05(C), the applicant must have a severe
impairment that significantly limits the applicant’s “physical or mental ability to do
basic work activities.” Id. at § 12.00(A). “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 ‘minimal effect’ on the claimant’s ability
to perform basic work activities.” Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992).
Listing 12.05(D) requires “[a] valid verbal, performance, or full scale I.Q.
of 60 through 70, resulting in at least two of the following: [1] Marked restriction
of activities of daily living; [2] Marked difficulties in maintaining social
functioning; [3] Marked difficulties in maintaining concentration, persistence, or
pace; or [4] Repeated episodes of decompensation, each of extended duration.” 20
C.F.R. Pt. 404, Subpt. P, App. 1 at § 12.05(D). “[A] valid I.Q. score need not be
conclusive of mental retardation where the I.Q. score is inconsistent with other
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evidence in the record on the claimant’s daily activities and behavior.” Lowery,
979 F.2d at 837.
Substantial evidence supports the ALJ’s denial of disability benefits because
Harris did not meet the requirements of Listing 12.05. He was never diagnosed
with mental retardation, only borderline intellectual functioning. The ALJ found
that Harris did well in special education classes and was able to hold several jobs,
which did not indicate the type of deficit in adaptive functioning required for
mental retardation. Harris could dress and bathe himself, take care of his personal
needs, and manage money. Likewise, Harris could read, communicate effectively,
and do simple math. Thus, substantial evidence supports the ALJ’s finding Harris
did not have the necessary deficits in adaptive functioning to meet Listing
12.05(C).
Furthermore, the ALJ did not err by rejecting the consultative psychologist’s
finding of severe impairment because the record evidence as a whole established
Harris did not have deficits in adaptive functioning to meet Listing 12.05(D). The
ALJ only found mild limitations on Harris’ ability to perform the activities of daily
living because Harris could drive, watch television, shop, and groom. Similarly,
Harris only had mild limitations in social functioning. Harris also had mild
limitations as to his concentration, persistence, and pace because he could respond
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to questions, recall information without difficulty, and did not show signs of
thought disorders. Last, the ALJ found no evidence of decompensation or
deterioration in work settings.
For the foregoing reasons, we conclude substantial evidence supports the
ALJ’s decision to deny Harris’ application for disability benefits, thus, the
judgment of the district court is affirmed.
AFFIRMED.
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