Nachelle Jordan v. Commissioner of Social Security Administration , 470 F. App'x 766 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-14439 APRIL 20, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 2:11-cv-14044-FJL
NACHELLE JORDAN,
lllllllllllllllllllllllllllllllllllllll lPlaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 20, 2012)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Nachelle Jordan appeals the district court’s order affirming the
Commissioner of Social Security’s (Commissioner’s) denial of her application for
supplemental security income benefits based upon her alleged disability. 42
U.S.C. §§ 405(g), 1383(c)(3). Jordan contends that the Administrative Law Judge
(ALJ) erred in finding that she was ineligible for benefits under either the listings
for child or adult mental retardation. She also challenges the ALJ’s failure to elicit
testimony from a vocational expert (VE) in determining that she was capable of
substantial gainful activity. After careful consideration, we affirm.
I.
Our review of the ALJ’s decision is limited; we ask only whether it was
supported by substantial evidence and was based upon the correct legal standards.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004).
“Substantial evidence is something more than a mere scintilla, but less than a
preponderance.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (internal
quotation marks omitted). Substantial evidence need only be what a reasonable
person would accept as adequate to support a conclusion. Crawford, 262 F.3d at
1158 (citation omitted). “If the Commissioner’s decision is supported by
substantial evidence, this Court must affirm, even if the proof preponderates
against it.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004). “We
may not decide facts anew, reweigh the evidence, or substitute our judgment for
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that of the Commissioner.” Dyer, 295 F.3d at 1210 (internal quotation marks and
alteration omitted). Where, as here, the Appeals Council denies review of the
ALJ’s decision, we review the ALJ’s decision as the final decision of the
Commissioner. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
II.
Jones argues that she was entitled to benefits both before and after she
turned 18 because she satisfied the descriptions in the social security listings for
child mental retardation and adult mental retardation.
For adults, “[t]he social security regulations establish a five-step evaluation
process, which is used to determine disability . . . .” Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005). Jones first contends that the ALJ’s determination at the
third step of this process was erroneous. In that step, the question is “whether the
impairment meets or equals the severity of the specified impairments in the Listing of
Impairments,” and the claimant bears the burden of proof. Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Jones directs our attention to the
Listing for adult mental retardation, 20 C.F.R. part 404, subpart P, appendix 1, § 12.05
(“Listing 12.05”), and claims that she has satisfied its requirements.
For persons under the age of 18, the analytical framework is somewhat
different, requiring that a claimant show “a medically determinable physical or mental
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impairment, which results in marked and severe functional limitations, and which . .
. can be expected to last for a continuous period of not less than 12 months” in order
to be entitled to SSI benfits. 42 U.S.C. § 1382c(a)(3)(C)(i); 20 C.F.R. § 416.924.
Jones contends that the ALJ erroneously rejected her contention that she had
demonstrated a mental impairment by satisfying the requirements of the Listing that
describes child mental retardation, 20 C.F.R. part 404, subpart P, appendix 1, § 112.05
(“Listing 112.05”).
Although the overarching analytical framework for child and adult diability
claims varies, the elements of Listings 112.05 and 12.05 substantially overlap, and the
regulations provide guidance about how ALJs and courts are to apply both. A
claimant must satisfy both “the diagnostic description in the introductory paragraph
and any one of” several additional criteria. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00
(emphasis supplied); id. § 112.00 (same). The introductory paragraphs for both
Listings, in turn, require “significantly subaverage general intellectual functioning
with deficits in adaptive functioning,” for adults, manifested prior to age 22. 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.05; id. § 112.05. As both the Listings and our
cases make plain, a claimant must demonstrate both subaverage intellectual
functioning and deficits in adaptive functioning, as well satisfying one of the
additional criteria, to prove entitlement to disability benefits under Listing 12.05 or
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112.05. See Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997); see also
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a claimant to show that his
impairment matches a listing, it must meet all of the specified” requirements — “[a]n
impairment that manifests only some . . . no matter how severely, does not qualify.”).
Here, Dr. Bruce Borkosky, a psychologist who evaluated Jordan in 2006,
concluded that her overall mental status was “low average,” and diagnosed her with
“borderline intellectual functioning,” a diagnosis that is mutually exclusive of mental
retardation. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 47-48, 741 (4th ed. text rev. 2000) (explaining the importance of
diagnostically “[d]ifferentiating Mild Mental Retardation from Borderline Intellectual
Functioning” based upon “careful consideration of all available information”). State
agency psychologists Dr. David Guttman and Dr. Thomas Conger made the same
diagnosis. The ALJ found, based upon Jordan’s own testimony, her report card, and
an evaluation by one of her teachers, that Jordan had completed the 11th grade without
repeating any grade, principally in “general education classes,” and was ranked in the
top 1/3 of her high school class. She was able to read and write as well as perform
basic math, albeit with some difficulty in division. Thus, ample evidence supported
the conclusion that Jordan did not specifically meet either Listing.
Nor did she demonstrate that her mental impairment was equivalent to the
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Listings. In order to demonstrate that her deficits in adaptive functioning were
functionally equivalent to the Listings, Jordan was required to demonstrate a
“marked” limitation in two, or “extreme” limitation in one, of six “domains,” which
set forth broad areas of functioning. 20 C.F.R. § 416.926a(b)(1). Jordan’s special
education teacher identified only minor problems with any of the domains and a
childhood disability evaluation completed by two state agency medical consultants,
Thomas Peele and Dr. Jane Cormier, determined that Jordan had “less than marked”
limitations in four of the domains, with no limitations at all in the other two. Dr.
Guttman and Dr. Conger also expressly concluded that Jordan’s impairments did not
meet, medically equal, or functionally equal the Listings’ requirements. The ALJ
expressly gave “great weight” to these assessments.
Jordan’s contention that she satisfied Listings 112.05 and 12.05 essentially
ignores the requirements in the Listings’ introductory paragraphs and focuses
exclusively upon the several subsequent criteria. And, in so doing, she asks us to
discount the opinions of multiple mental health experts and to give greater weight to
her testimony and that of her mother, both of which the ALJ determined were entitled
only to minimal weight. This we may not do. Moore, 405 F.3d at 1211. The mental
health opinions of Dr. Borkosky, Jordan’s special education teacher, and the state
agency mental health experts supported the conclusion that Jordan did not manifest
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the deficits set forth in the Listings’ introductory paragraphs. Therefore, substantial
evidence supported the ALJ’s determination that Jordan was not disabled because her
mental impairment did not meet, medically equal, or functionally equal either the child
or adult mental retardation Listings.
III.
Even if her claim to disability under the mental retardation Listings cannot
succeed, Jordan argues that the ALJ erred in deciding, without consulting a VE,
that she was not disabled.1
Because the ALJ found that Jordan had a severe combination of impairments
that did not satisfy any Listing and no past work experience, the Commissioner
bore the burden to “show the existence of other jobs in the national economy
which, given [Jordan’s] impairments, [she] can perform.” Jones v. Apfel, 190 F.3d
1224, 1228-29 (11th Cir. 1999). Unless “the claimant cannot perform a full range
of work at a given level of exertion or the claimant has non-exertional impairments
that significantly limit basic work skills,” the Commissioner may meet this burden
by relying on the Medical-Vocational Guidelines, also known as the Grids. Id. at
1
Jordan has only challenged the ALJ’s decision that a VE’s testimony was unnecessary
based upon the effect of her mental impairments. Therefore, we do not address the effect, if any,
of Jordan’s physical impairments upon her residual functional capacity. Norelus v. Denny’s,
Inc., 628 F.3d 1270, 1296-97 (11th Cir. 2010); Stewart v. Dept. of Health and Human Servs., 26
F.3d 115, 115-16 (11th Cir. 1994).
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1229. In this case, the ALJ found that Jordan had the residual functional capacity
to perform medium exertional work and that her non-exertional impairments did
not significantly affect the types of work that she could perform. The ALJ relied
exclusively upon the Grids to reach this conclusion.
Jordan argues that borderline intellectual functioning constitutes a
significant non-exertional limitation on her basic work skills, that the ALJ’s
decision to the contrary was not supported by substantial evidence, and, thus, that a
VE’s testimony was required. Although borderline intellectual functioning may, in
conjunction with other conditions, contribute to a finding that an individual’s
impairments significantly limit her basic work skills, there is no merit to Jordan’s
suggestion that it mandates that conclusion. See Allen v. Sullivan, 880 F.2d 1200,
1202 (11th Cir. 1989) (holding that borderline intellectual functioning in
conjunction with a series of other mental, physical, and emotional impairments
precluded reliance upon the Grids).
All of the jobs listed in the Grids are unskilled, meaning that they require
“little or no judgment” in the performance of “simple duties that can be learned on
the job in a short period of time.” 20 C.F.R. § 416.968(a); 20 C.F.R. pt. 404, subpt.
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P, app. 2, § 200.00(b) (stating that jobs in the Grids are unskilled).2 Only if a
claimant’s impairment significantly limits her ability to perform such duties is the
testimony of a VE strictly required. Jones, 120 F.3d at 1228-29.
Jordan had a driver’s license, she was able to perform simple math, read, and
write, and she agreed that she had no difficulty making change. At least four state
agency evaluators determined that she had no limitation in moving and
manipulating objects, and little limitation in acquiring and using information,
attending and completing tasks, and interacting and relating with others. No
evidence suggested that Jordan’s impairments — which according to multiple
evaluations were relatively minor while Jordan was under the age of 18 —
worsened after she attained the age of 18. And Jordan had successfully completed
a formal education through the 11th grade. See 20 C.F.R. pt. 404, subpt. P, app. 2,
§ 203.25 (stating that younger individual with the residual functional capacity to
perform medium work who has a limited education and no work experience is not
disabled); 20 C.F.R. § 416.964(b)(2) (stating that formal education through the
11th grade constitutes a limited education).
2
For the first time on appeal, Jordan argues that VE testimony was required because at
least some unskilled jobs require a certain reasoning level, as defined in the Dictionary of
Occupational Titles. This argument is waived. See Crawford v. Comm’r of Soc. Sec., 185 F.3d
1211, 1215 (11th Cir. 1999).
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Thus, although Jordan is correct that contrary evidence exists, substantial
evidence supported the ALJ’s finding that Jordan’s capacity for unskilled medium
work was not significantly compromised by her non-exertional mental
impairments. For that reason, the ALJ did not err in relying on the Grids, without
testimony from a VE, to establish the existence of jobs in the national economy
that Jordan could perform and, thereby, to conclude that she was not disabled.
IV.
After thorough review of the record, the decisions of the ALJ and the district
court, and the parties briefs, we affirm the Commissioner’s denial of benefits.
AFFIRMED.
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