Case: 13-10318 Date Filed: 09/11/2013 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10318
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-00239-GRJ
TRACY S. SMITH,
Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 11, 2013)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Case: 13-10318 Date Filed: 09/11/2013 Page: 2 of 8
Tracy S. Smith appeals the magistrate judge’s order affirming the
Administrative Law Judge’s (ALJ) denial of her applications for disability
insurance benefits (DIB) and supplemental security income (SSI), pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Smith originally alleged a disability onset date
of September 2, 2007, following a stroke, which allegedly caused her to experience
difficulty walking, trouble remembering, headaches, and hand cramps. On appeal,
she argues that the ALJ erred in finding that (1) she was not mentally retarded at
step two of the sequential evaluation process, and (2) she did not meet Listing
12.05(C) for mental retardation at step three of the sequential evaluation process.
Specifically, Smith asserts that the ALJ misconstrued her IQ test—on which she
received a score of 59—to conclude that her IQ was above 70. After a thorough
review of the briefs and record, we affirm. 1
I.
We review the Social Security Commissioner’s decision for substantial
evidence and to ensure that the decision was “based on proper legal standards.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotation marks omitted). “Substantial evidence is more than a scintilla and is
1
Smith also claims that “[t]he record as a whole supports an additional severe
impairment of bipolar disorder.” However, because Smith has failed to offer any argument to
support her claim, it is deemed abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 n.6 (11th Cir. 1989) (stating that issues not argued on appeal are deemed abandoned).
2
Case: 13-10318 Date Filed: 09/11/2013 Page: 3 of 8
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. (internal quotation marks omitted).
The Social Security Regulations outline a five-step sequential evaluation
process to determine whether a claimant is disabled. See 20 C.F.R.
§ 404.1520(a)(4). The ALJ must evaluate:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178 (citing Phillips v. Barnhart, 357 F.3d 1232, 1237–39
(11th Cir. 2004)); see 20 C.F.R. §§ 404.1520(a)(4)(i)–(v).
II.
Smith first argues that she established mental retardation as her severe
impairment at step two. At this step, the ALJ must make a “threshold inquiry” as
to the medical severity of the claimant’s impairments. McDaniel v. Bowen, 800
F.2d 1026, 1031 (11th Cir. 1986); see 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), and
404.1520a(a). “[T]he finding of any severe impairment, whether or not it qualifies
as a disability and whether or not it results from a single severe impairment or a
combination of impairments that together qualify as severe, is enough to satisfy the
3
Case: 13-10318 Date Filed: 09/11/2013 Page: 4 of 8
requirement of step two.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987);
see 20 C.F.R. § 404.1523. Only slight, trivial impairments that “would clearly not
be expected to interfere with the individual’s ability to work, irrespective of age,
education or work experience” are not deemed severe at this step. McDaniel, 800
F.2d at 1031.
In addition, an impairment is not severe if it does not significantly limit the
claimant’s ability to do basic work activities, which are defined as “the abilities
and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). Examples of
basic work activities include physical activities like walking, standing, and
carrying, and “seeing, hearing, and speaking,” as well as understanding, following,
and remembering simple instructions, using judgment, “[r]esponding appropriately
to supervision, co-workers[,] and usual work situations,” and “[d]ealing with
changes in a routine work setting.” Id.
We conclude that substantial evidence supports the ALJ’s decision that
Smith is not mentally retarded because she presented no evidence that her IQ
limited her ability to do basic work activities. Even Dr. Linda Abeles, who
evaluated Smith’s mental health, opined that Smith was capable of manual labor
work and that Smith’s prognosis for future success in the workplace was “fair,”
despite diagnosing Smith with borderline intelligence. Smith also self-reported on
multiple occasions that she had no mental impairments and that she was of average
4
Case: 13-10318 Date Filed: 09/11/2013 Page: 5 of 8
intelligence, and testified before the ALJ that she could read, write, and count
monies. Thus, there was substantial evidence in the record to support the ALJ’s
step two determination.
III.
At step three, the claimant has the burden of proving that her impairment
meets or equals a listed impairment. See Barron v. Sullivan, 924 F.2d 227, 229
(11th Cir. 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) (per curiam). “To ‘equal’ a
Listing, the medical findings must be at least equal in severity and duration to the
listed findings.” Id. (internal quotation marks omitted).
Smith claims that her mental retardation impairment met or equaled Listing
12.05(C). In its introductory paragraph, Listing 12.05, entitled “Mental
retardation,” provides:
Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22. 2
2
We have held that “a claimant need not present evidence that she manifested deficits in
adaptive functioning prior to the age [of] twenty-two, when she presented evidence of low IQ
test results after the age of twenty-two.” Hodges v. Barnhart, 276 F.3d 1265, 1266 (11th Cir.
2001).
5
Case: 13-10318 Date Filed: 09/11/2013 Page: 6 of 8
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (footnote added). Listing 12.05(C)
specifically requires 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.” Id. § 12.05(C). “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).
We conclude that substantial evidence supports the ALJ’s conclusion that,
despite Smith’s IQ scores, she did not meet or equal the criteria of Listing
12.05(C). First, the record supports the conclusion that, due to her limited effort
during examination and apparent fatigue, Smith’s IQ scores were not valid and
underestimated her actual level of functioning. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 12.00(D)(6)(a) (noting 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”).
Second, even though she was diagnosed with possible borderline intellectual
functioning, this diagnosis alone was insufficient to meet the criteria of Listing
6
Case: 13-10318 Date Filed: 09/11/2013 Page: 7 of 8
12.05(C). See 20 C.F.R. § 416.925(d) (“Your impairment(s) cannot meet the
criteria of a listing based only on a diagnosis. To meet the requirements of a listing,
you must have a medically determinable impairment(s) that satisfies all of the
criteria of the listing.”). Given that the administering physician, Dr. Janet
Humphreys, felt that Smith’s IQ scores underestimated her intelligence, the ALJ
properly determined that Smith did not present a valid IQ score of 60 through 70.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(C). Finally, the ALJ correctly
noted that Smith’s treatment records did not support a finding of mental
retardation. See Popp v. Heckler, 779 F.2d 1497, 1500 (11th Cir. 1986) (per
curiam) (“[T]he ALJ was not required to find that [the claimant] was mentally
retarded based on the results of the IQ test. The ALJ is required to examine the
results in conjunction with other medical evidence and the claimant’s daily
activities and behavior.”). Specifically, records showed that Smith did not claim
disability due to mental retardation until a consultative examination conducted
after her hearing in front of the ALJ. Furthermore, during intake for substance
abuse treatment, Smith reported that she had no problems in school and was of
average intelligence, and denied having any problems with abstraction, problem
solving, or thought processes. The fact that none of the other treatment records
diagnosed Smith with mental retardation supports the ALJ’s rejection of the IQ test
results and supports the conclusion that Smith did not meet or equal the criteria of
7
Case: 13-10318 Date Filed: 09/11/2013 Page: 8 of 8
Listing 12.05(C). Ultimately, because the record evidence showed that the results
of Smith’s IQ test provided only a low estimate of her IQ and no other medical
source determined that Smith was mentally retarded, substantial evidence supports
the ALJ’s finding that Smith did not meet or equal the criteria of Listing 12.05(C).
AFFIRMED.
8