L.R.M. Ex Rel. McCracklin v. Social Security Administration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12351 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 8, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cv-01672-IPJ
L.R.M.,
by and through her mother and
next friend, Nettie McCracklin,
lllllllllllllllllllll Plaintiff–Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
COMMISSIONER,
llllllllllllllllllDefendant–Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 8, 2010)
Before BLACK, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
L.R.M., a young woman with borderline intellectual functioning, appeals
from an order affirming the Social Security Administration’s denial of her
application for supplemental social security income (SSI) benefits. L.R.M.’s
appeal raises three issues. First, whether substantial evidence supports the
administrative law judge’s (ALJ’s) decision to deny L.R.M. benefits. Second,
whether the ALJ failed to give appropriate consideration to an examining
psychologist’s opinion. And finally, whether the ALJ failed to fully and fairly
develop the administrative record.
I.
When L.R.M. applied for SSI benefits, she was 19 years old and lived at
home with her mother and three younger brothers. L.R.M. had an IQ of 65 and
had not completed high school. The only job she had ever held (putting tags on
clothes) lasted just three days. Because she believed that her daughter was
disabled, L.R.M.’s mother had her apply for SSI benefits.
To establish that she has a disability that entitles her to SSI benefits, L.R.M.
has to show that she has an impairment that prevents her from performing
substantial gainful activity for 12 months or more. 42 U.S.C. § 1382c. The Social
Security Administration uses a five-step analysis to determine whether a claimant
is disabled. 20 C.F.R. § 416.920. The agency first considers the applicant’s work
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history. If the applicant is not gainfully employed, the agency determines the
severity of her impairment. If the impairment is severe, the agency determines
whether it also qualifies as an impairment listed in the social security regulations.
If it does, the agency considers the applicant’s “residual functioning capacity” and
whether she can still perform “past relevant work.” Id. Finally, if the applicant
cannot perform past relevant work, the agency considers whether she can adjust to
other work. To establish disability, the claimant must meet all of these criteria.
Here, the ALJ found that L.R.M. did not have any past relevant work history
and that her borderline intellectual functioning qualified as a severe impairment.
But because L.R.M. did not establish that she had a listed impairment, the ALJ
determined she did not qualify for SSI benefits.
II.
We review an agency’s decision to determine whether it was supported by
substantial evidence. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Substantial evidence is that which a reasonable person would take as sufficient to
support a conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). It is
more than a scintilla but need not be a preponderance. Dyer, 395 F.3d at 1210.
L.R.M. argues that the ALJ’s decision was not supported by substantial
evidence because her short-term-memory impairment satisfies the listing criteria.
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She also argues that she meets the listing criteria because she suffers from marked
restrictions in daily living, social functioning, and maintaining concentration,
persistence or pace. We disagree.
Because L.R.M.’s IQ was above 59 but below 70, to have a listed
impairment she would need to have an additional limitation to qualify for SSI
benefits. One such limitation would be a physical or mental impairment that
imposed an additional and significant work-related limitation or function. 20
C.F.R. pt. 404, subpt. P, Appx. 1, § 12.05(c). Another would be marked
restrictions in at least two of the following areas: daily-living activities; social
functioning; maintaining concentration, persistence or pace. Id. § 12.05(d).
First, although L.R.M. argues that her short-term-memory problem qualifies
as an additional mental impairment, the psychologist’s report indicates that her
memory problems are related to her borderline intellectual functioning. Because
the evidence suggests that her memory problems are not a discrete, additional
impairment, the ALJ’s finding that L.R.M. did not meet § 12.05(c)’s requirements
is supported by substantial evidence, and may not be disturbed.
The ALJ’s finding that L.R.M. did not meet § 12.05(d)’s requirements is
likewise supported by substantial evidence. L.R.M.’s evaluation indicated that she
had only moderate restrictions in daily living, social functioning, and maintaining
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concentration, persistence or pace. Furthermore, at the hearing L.R.M. testified
that she can prepare sandwiches and that she dresses herself. And although she
testified that she does not have any friends, she did say that she spends time
socializing with family members and that she occasionally speaks with her sister
on the telephone. She also said that she enjoys braiding other people’s hair.
Additional evidence showed that she could follow her doctor’s orders and that she
sought medical care of her own accord. Her mother even testified that she could
follow simple, spoken instructions. This evidence is sufficient to support the
ALJ’s conclusion that L.R.M. had only moderate restrictions in daily living, social
functioning, and maintaining concentration, persistence or pace.1
L.R.M. also argues that the ALJ erred by failing to give controlling weight
to the opinion of John Neville, the consultative psychologist who examined her.
But this argument is misplaced as the ALJ wrote in his report that he gave “great
weight to the opinion[] of Dr. Neville.” In any event, Neville’s opinion was that
L.R.M. did not have a listed impairment.
Lastly, L.R.M. argues that the ALJ failed to fully and fairly develop the
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Because the ALJ’s conclusion that L.R.M. did not have a listed impairment is
supported by substantial evidence, and L.R.M.’s failure to satisfy that criterion means she is not
entitled SSI benefits, we need not address L.R.M.’s argument that she was not allowed to pose a
fair hypothetical to the agency’s vocational expert. That issue would only be relevant had
L.R.M. met all of the other criteria necessary to qualify for SSI benefits.
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administrative record by not calling for further medical review. An ALJ has a
duty to ensure that a full and fair record is developed. Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003). To determine whether an ALJ has fulfilled this
duty, we look for evidentiary gaps in the record that result in unfairness or clear
prejudice. Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997).
Here, we first note that L.R.M. underwent a consultative examination. The
conclusions from Neville’s examination are consistent with both L.R.M.’s and her
mother’s testimony, and L.R.M. does not elaborate on how the record was
insufficient without a second examination. And because L.R.M. did not allege a
physical impairment, and there is no evidence in the record that L.R.M. was
physically impaired, there was no need to order a physical examination. Given our
inability to identify any evidentiary gaps in the record, much less any gaps that
resulted in unfairness or clear prejudice, we cannot say that the ALJ did not
sufficiently develop the administrative record.
The district court’s order is AFFIRMED.
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