             Case: 17-12414   Date Filed: 02/02/2018   Page: 1 of 9


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-12414
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:15-cv-00200-WTH-GRJ

JAMES H. MABREY,

                                                             Plaintiff-Appellant,

                                    versus

ACTING COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,

                                                            Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                              (February 2, 2018)

Before MARCUS, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

      James H. Mabrey appeals the district court’s order affirming the

administrative law judge’s (“ALJ”) denial of disability insurance benefits and

supplemental security income, under 42 U.S.C. §§ 405(g), 1383(c)(3). On appeal,
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Mabrey argues that: (1) the ALJ erred in failing to order a new IQ test to assess

Mabrey’s disability since his school records, which listed his IQ as 57, plus his

history as a day laborer triggered the ALJ’s duty to fully and fairly develop the

record to decide whether Mabrey had a qualifying impairment; (2) the ALJ erred in

finding he had past relevant work as a motor vehicle dispatcher and construction

worker; and (3) the ALJ erred in mechanically applying the Medical-Vocational

Guidelines (the “grids”) to find that Mabrey was not disabled because the grids

would have directed a finding of disability five months later, when Mabrey would

have reached the advanced age category. After thorough review, we affirm.

      We review de novo the legal principles upon which the ALJ relied, but are

limited to assessing whether the ALJ’s resulting decision is supported by

substantial evidence. Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1266–67

(11th Cir. 2015). In social security cases where the ALJ denies benefits and the

Appeals Council denies review, we review the ALJ’s decision as the

Commissioner’s final decision. Id. at 1267. Our review is the same as that of the

district court, meaning we neither defer to nor consider any errors in the district

court’s opinion. Id. Issues not raised in an appellate brief are deemed abandoned.

Fla. Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1256 (11th

Cir. 2016). Irrelevant errors are harmless and do not require reversal or remand.

Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).


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      Under the substantial evidence standard, we will affirm the ALJ’s decision if

there exists relevant evidence that a reasonable person would accept as adequate to

support a conclusion. Henry, 802 F.3d at 1267. We will not decide the facts anew,

make credibility determinations, or re-weigh the evidence. Id. In determining

whether a claimant is disabled, the ALJ must consider the evidence as a whole. Id.

We must affirm the ALJ’s decision if it is supported by substantial evidence, even

if the evidence preponderates against the ALJ’s findings. Id.

      First, we are unpersuaded by Mabrey’s claim that the ALJ erred in failing to

order Mabrey a new IQ test to assess his disability. An ALJ uses a five-step,

sequential evaluation process to decide whether a claimant is disabled, examining

whether: (1) the claimant is currently engaged in substantial gainful activity; (2)

the claimant has a severe impairment or combination of impairments; (3) 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,

the claimant can perform any of his past relevant work despite the impairment; and

(5) 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 v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

      The Listing of Impairments describes, for each major body system, the

impairments that are considered severe enough to prevent a person from doing any


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gainful activity. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). 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 Listing’s

specific criteria and duration requirement. Id. To “equal” a Listing, the medical

findings must be at least equal in severity and duration to the listed findings. Id.

      Under the regulations in effect when the ALJ issued her opinion, the § 12.05

mental-retardation listing required a showing that the claimant: (1) had

significantly subaverage general intellectual functioning; (2) had deficits in

adaptive behavior; and (3) had manifested deficits in adaptive behavior before age

22. Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997); 20 C.F.R. Pt. 404,

Subpt. P, App. 1, §§ 12.00(A)(3), 12.05 (2013). Listing 12.05B further required a

“valid verbal, performance, or full scale IQ of 59 or less.” 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 12.05B (2013); id. § 12.00A (noting that meeting the mental-

retardation listing required a showing that the impairment satisfied both the

diagnostic description in the introductory paragraph and one of the criteria set out

in subsections A, B, C, and D); id. § 12.00D(6)(b) (noting that “[s]tandardized

intelligence test results [were] essential to the adjudication of all cases of mental

retardation that [were] not covered under the provisions of 12.05A”). An IQ test is

valid if it is a “test[] of general intelligence that [has] a mean of 100 and a standard

deviation of 15; e.g., the Wechsler series.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §


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12.00D(6)(b) (2013). Generally, the claimant meets the criteria for presumptive

disability under section 12.05B when the claimant presents a valid IQ score of 59

or less. Crayton, 120 F.3d at 1219–20.         Because IQ remains fairly constant

throughout life, an IQ score need not be obtained before the age of 22 to invoke the

rebuttable presumption that the claimant manifested deficits in adaptive behavior

before age 22. Hodges v. Barnhart, 276 F.3d 1265, 1268−69 (11th Cir. 2001).

However, a valid IQ score need not be conclusive of mental retardation where the

IQ score is inconsistent with other evidence in the record on the claimant’s daily

activities and behavior. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992).

      The ALJ has a basic duty to develop a full and fair record, which requires

the ALJ to “scrupulously and conscientiously probe into, inquire of, and explore

for all relevant facts.” Henry, 802 F.3d at 1267 (quotation omitted). Remand for

further factual development is proper when the record reveals evidentiary gaps that

result in unfairness or clear prejudice. Id. But an ALJ is not required to order a

consultative examination as long as the record contains sufficient evidence for the

ALJ to make an informed decision. Ingram v. Comm’r of Soc. Sec. Admin., 496

F.3d 1253, 1269 (11th Cir. 2007). Moreover, since the claimant bears the burden

of proving he is disabled, a claimant is not entitled to relief on a claim that the ALJ

failed to develop the record when the ALJ requested evidence that the claimant

failed to provide. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).


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      Here, the ALJ did not err in failing to further develop the record on

Mabrey’s alleged intellectual deficits. For starters, when the ALJ attempted to

expand the record, Mabrey did not carry his burden to submit the documentary

evidence the ALJ requested. Id. Specifically, the ALJ asked Mabrey whether he

was in special education classes in school and whether the “California” test listed

on his transcript was a valid IQ test, and then told Mabrey to file additional

documentation after the hearing to support his answers.          When Mabrey filed

additional education records, they did not bear out his claims that he had taken

special education classes for one year or that his California test qualified as a valid

IQ test with an appropriate mean and standard deviation. 20 C.F.R. Pt. 404, Subpt.

P, App. 1, § 12.00D(6)(b) (2013). Indeed, Mabrey admits his California test was

not an IQ test, much less a valid IQ test. Thus, Mabrey did not carry his burden to

establish an intellectual disability, despite the ALJ’s attempt to develop the record.

      In addition, the record contained sufficient evidence for the ALJ to make an

informed determination that Mabrey did not suffer from an intellectual disability,

making further record development unnecessary. Ingram, 496 F.3d at 1269. The

vocational expert testified that based on Mabrey’s description of his prior work

experience, Mabrey had previously performed semiskilled work as a construction

worker and skilled work as a motor-vehicle dispatcher. Mabrey testified that he

had passed a written driver’s test, had been able to drive his friend to the store, and


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could perform a variety of tasks around the house without assistance. And no

medical records indicated that Mabrey might suffer from an intellectual disability.

Mabrey points to one record indicating that he had less-than-perfect memory and

was unable to spell “world” backwards, but that evidence does not suggest that he

had a diagnosable intellectual deficiency. Rather, the relevant evidence about

Mabrey’s daily activities, work history, and medical history supported the IJ’s

reasonable conclusion that Mabrey did not have an IQ of 57, and was more than

sufficient for the ALJ to make an informed determination about Mabrey’s alleged

intellectual disability without further developing the record. Ingram, 496 F.3d at

1269. Moreover, even if the ALJ erred by concluding that an IQ score obtained

during adulthood was not relevant to the disability analysis, this error was harmless

because the record as a whole supported the ALJ’s conclusion that Mabrey did not

have an intellectual disability. Diorio, 721 F.2d at 728.

      We are also unconvinced by Mabrey’s claim that the ALJ erred in assessing

his past relevant work.     Where there is conflict between the Dictionary of

Occupational Titles (“DOT”) and a vocational expert’s testimony, an ALJ may rely

solely on a vocational expert’s testimony. See Jones v. Apfel, 190 F.3d 1224,

1226, 1229–30 (11th Cir. 1999).

      In this case, the ALJ’s conclusions about Mabrey’s previous construction

and motor-vehicle dispatcher jobs were irrelevant because the ALJ concluded that


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he could not perform any past relevant work. Because the record reveals that the

ALJ concluded that Mabrey could not perform any past relevant work, it squarely

contradicts Mabrey’s claim that the ALJ had found that he had past relevant work

as a motor-vehicle dispatcher. Accordingly, any error on this point would have

been harmless and does not require reversal or remand. Diorio, 721 F.2d at 728.

      Similarly, we reject Mabrey’s argument that the ALJ erred in mechanically

applying the “grids” to find that Mabrey was not disabled. As we’ve said, the final

step of the sequential analysis asks whether there are significant numbers of jobs in

the national economy that the claimant can perform, given his residual functional

capacity, age, education, and work experience. Winschel, 631 F.3d at 1178. An

ALJ may determine whether a claimant has the ability to adjust to other work in

the national economy by either applying the grids or using a vocational expert.

Phillips v. Barnhart, 357 F.3d 1232, 1239–40 (11th Cir. 2004). The grids provide

an alternate path to qualify for disability benefits when an applicant’s impairments

do not meet the requirements of the listed qualifying impairments. Id. at 1240.

They allow adjudicators to consider factors like age, confinement to sedentary or

light work, inability to speak English, educational deficiencies, and lack of job

experience in assessing a disability. Id. Each factor can independently limit the

number of jobs realistically available to an individual, and combinations of the

factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.


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      Where the ALJ has applied the age grids in a mechanical fashion, a claimant

should be given an opportunity to make a proffer of evidence on his ability to

adapt. Patterson v. Bowen, 799 F.2d 1455, 1458–59 (11th Cir. 1986). If he makes

a proffer of substantial evidence that an ALJ could find credible and tending to

show that the claimant’s ability to adapt to a new work environment is less than the

level established under the grids for persons his age, a court is required to remand

the case for reconsideration of the age/ability-to-adapt issue. Id. If, on the other

hand, the claimant does not make such a proffer, the ALJ’s mechanistic use of the

age grids would be harmless error and there would be no need to remand. Id.

      Here, the record belies Mabrey’s claim that the ALJ mechanically applied

the grids. The ALJ appropriately relied on a vocational expert’s testimony, rather

than the grids, in concluding that Mabrey could make a successful adjustment to

other work that existed in the national economy. Phillips, 357 F.3d at 1239–40.

Further, even if Mabrey’s alleged IQ scores constituted a factual proffer that a

higher age category applied, the ALJ appropriately concluded, as we’ve already

held, that other record evidence conflicted with Mabrey’s IQ allegations.

Accordingly, any error in applying the grids would have been irrelevant and

harmless. Diorio, 721 F.2d at 728; Patterson, 799 F.2d at 1458–59.

      AFFIRMED.




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