Billups v. Astrue (CONSENT)
MEMORANDUM OPINION AND ORDER directing that the decision of the Commissioner is AFFIRMED. Signed by Honorable Judge Terry F. Moorer on 12/27/13. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JASON O. BILLUPS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
CASE NO. 2:12-cv-815-TFM
MEMORANDUM OPINION AND ORDER
On October 23, 2008, Jason O. Billups (APlaintiff@ or ABillups@) applied for
supplemental security income under Title XVI and disability insurance benefits (ADIB@)
under Title II of the Social Security Act (Athe Act@). On November 6, 2008 Billups filed an
application for child’s insurance benefits. In all three applications, Billups alleged a
disability onset date of April 1, 2008. (Tr. 113-23). After being denied, Billups timely filed
for and received a hearing before an administrative law judge (AALJ@) who rendered an
unfavorable decision on November 22, 2010. (Tr. 18-32). The Appeals Council denied
Plaintiff’s request for review. (Tr. 1-5). As a result, the ALJ=s decision became the final
decision of the Commissioner of Social Security (ACommissioner@). Id. Judicial review
proceeds pursuant to 42 U.S.C. ' 405(g), and 28 U.S.C. ' 636(c). After careful scrutiny of
the record and briefs, for reasons herein explained, the Court AFFIRMS the Commissioner=s
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I. NATURE OF THE CASE
Billups seeks judicial review of the Commissioner=s decision denying his application
for disability insurance benefits. United States District Courts may conduct limited review of
such decisions to determine whether they comply with applicable law and are supported by
substantial evidence. 42 U.S.C. ' 405. The Court may affirm, reverse and remand with
instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court=s review of the Commissioner=s decision is a limited one. The Court=s sole
function is to determine whether the ALJ=s opinion is supported by substantial evidence and
whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
AThe Social Security Act mandates that >findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.=@ Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. '405(g)). Thus, this Court must find the
Commissioner=s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla C
i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and
must include such relevant evidence as a reasonable person would accept as adequate to
support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971));
Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
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If the Commissioner=s decision is supported by substantial evidence, the district court
will affirm, even if the court would have reached a contrary result as finder of fact, and even
if the evidence preponderates against the Commissioner=s findings. Ellison v. Barnhart, 355
F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). The Court
must view the evidence as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The Court Amay not decide facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner],@ but rather it Amust defer to the
Commissioner=s decision if it is supported by substantial evidence.@ Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).
The Court will also reverse a Commissioner=s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v.
Dep=t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the
Commissioner=s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
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III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act=s general disability insurance benefits program (ADIB@)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. 1 See 42 U.S.C. '
423(a). The Social Security Act=s Supplemental Security Income (ASSI@) is a separate and
distinct program. SSI is a general public assistance measure providing an additional resource
to the aged, blind, and disabled to assure that their income does not fall below the poverty
line. 2 Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. ''
1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate programs, the law
and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims
for DIB and SSI are treated identically for the purpose of determining whether a claimant is
disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986). Applicants under
DIB and SSI must provide Adisability@ within the meaning of the Social Security Act which
defines disability in virtually identical language for both programs. See 42 U.S.C. '' 423(d),
1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. '' 404.1505(a), 416.905(a). A person is entitled to
disability benefits when the person is unable to
Engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, ' 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, '' 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html
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42 U.S.C. '' 423(d)(1)(A), 1382c(a)(3)(A). A Aphysical or mental impairment@ is one
resulting from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. '' 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. '' 404.1520,
(1) Is the person presently unemployed?
(2) Is the person=s impairment(s) severe?
(3) Does the person=s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? 3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question,
or, on steps three and five, to a finding of disability. A negative answer to any
question, other than step three, leads to a determination of Anot disabled.@
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying for
disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the
This subpart is also referred to as Athe Listing of Impairments@ or Athe Listings.@
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burden shifts to the Commissioner, who must then show there are a significant number of
jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant=s Residual
Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the claimant is still able to do
despite his impairments and is based on all relevant medical and other evidence. Id. It also
can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step,
the ALJ considers the claimant=s RFC, age, education, and work experience to determine if
there are jobs available in the national economy the claimant can perform. Id. at 1239. To
do this, the ALJ can either use the Medical Vocational Guidelines 4 (Agrids@) or hear
testimony from a vocational expert (“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or
light work, inability to speak English, educational deficiencies, and lack of job experience.
Each factor can independently limit the number of jobs realistically available to an
individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of
ADisabled@ or ANot Disabled.@ Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Plaintiff was born in 1986 and was 22 on his alleged onset date and was 24 at the time
of the ALJ’s decision. (Tr. 18, 32). He completed eleventh grade while enrolled in special
education courses (Tr. 42), and his past work consisted of various fast-food worker positions.
See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. ' 416.969 (use of the grids in SSI
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(Tr. 228). School records demonstrate that in June 2007, a school official determined that
Plaintiff has dyslexia with weak listening comprehension abilities. (Tr. 269, 270).
At the hearing before the ALJ, Plaintiff was represented by George Taylor, a nonattorney. (Tr. 18). Plaintiff testified at the hearing that he had problems concentrating and
heard voices. (Tr. 46). He said he had his driver’s license and drove, but “[n]ot that often”
(Tr. 43) and that he usually just stayed home because his medication made him “sleepy” (Tr.
44). He said he mostly kept to himself, but when he had been working, he had been able to
be around other people some of the time (Tr. 46-47). Plaintiff testified that he was able to
wash dishes, do laundry, but not fold or iron, take out the trash, and mop, but he said this was
about all the chores he could do. (Tr. 47-49). He said he liked to watch cartoons (Tr. 49).
He also testified that he shopped for groceries with his mom. (Tr. 49). He said that he began
collecting unemployment after he was laid off from his fast-food job the previous year, and
that he was still collecting unemployment at the time of the hearing. (Tr. 43). He testified
that his mom helped him complete his unemployment application. (Tr. 43).
A vocational expert testified that a hypothetical individual of Plaintiff’s age,
education, and work experience, who could perform simple work involving one-and-two step
functions and could occasionally interact with the general public, could perform Plaintiff’s
past work as a fast-food worker. (Tr. 52). The ALJ found that Billups had not engaged in
substantial gainful activity since his April 2008 alleged onset date, and that Plaintiff had
severe impairments – dyslexia, affective disorder, and paranoid schizophrenia with psychosis
– that did not meet or equal the criteria of a listing at 20 C.F.R. pt. 404 subpt. P app. 1 (Tr.
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20-27). After considering the entire record, the ALJ found that Plaintiff could perform work
at all exertional levels, but was limited to work involving simple one-and two-step functions
and occasional contact with the public. (Tr. 27-31). Based on vocational expert testimony,
the ALJ concluded that Plaintiff could perform his past relevant work as a fast-food worker.
(Tr. 31). Thus, the ALJ found Plaintiff not disabled within the meaning of the Act. (Tr. 32).
Plaintiff submitted additional evidence to the Appeals Council, which consisted of a
one-page letter written by Plaintiff’s mother in which she stated that he was enrolled in
special education, was traumatized from a young age due to various life occurrences, did not
communicate well, was often fired from jobs, could not read, and was unable to complete his
disability or unemployment forms on his own. (Tr. 339). The Appeals Council found that
the additional evidence did not provide a basis for changing the ALJ’s decision. (Tr. 1-5).
Plaintiff also filed a Motion for leave to file evidence with this court. (Doc. 3). This
court ordered briefs on the Motion and Plaintiff filed his brief seeking sentence six remand
(Doc. 18) to which the Commissioner filed a response (Doc. 19). This court granted the
Motion for Leave to File Evidence to the extent it is probative of a sentence six remand under
42 U.S.C. 405 (g). The court will address the Plaintiff’s request for a sentence six remand at
the end of this opinion.
V. MEDICAL HISTORY
The first medical evidence in the record pertaining to Plaintiff’s mental limitations is a
December 2008 consultative psychological evaluation performed by Guy Renfro, Ph.D.,
which was ordered in connection with Plaintiff’s disability application (Tr. 293-295). Dr.
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Renfro noted Plaintiff’s limited vocational history of fast-food restaurant work, and that
Plaintiff had not been able to maintain employment at any one job for very long. Dr. Renfro
performed a mental status examination and testing on Plaintiff, but noted that Plaintiff “did
not put forth optimal effort on the tasks presented to him.” (Tr. 294). Dr. Renfro further
noted that Plaintiff “was quick to say that he did not know something or did not remember
basic facts about himself or his family. He did not know the date, month, or year.” Id. Dr.
Renfro added that Plaintiff “said he did not know [answers] to questions that are known
typically even to individuals with mild mental retardation.” (Tr. 295). Dr. Renfro determined
that Plaintiff had a full scale IQ of 50, but that this was “likely [a] low estimate of his
intellectual functioning” based on Plaintiff’s lack of effort. (Tr. 295). With those caveats,
Dr. Renfro assessed that Plaintiff functioned in the mild range of mental retardation, and had
limitations in his short-term memory skills, fund of information, attention and concentration,
social judgment, and reasoning (Tr. 295).
The next month, state agency psychologist Gordon Rankart, Psy.D., reviewed
Plaintiff’s medical records – namely Dr. Renfro’s report, as Plaintiff had not sought any
psychiatric treatment during the relevant time period, (Tr. 297) – and opined that Plaintiff
had mild mental retardation, but was capable of employment that involved simple tasks (Tr.
303-15). Dr. Rankart also opined that Plaintiff could comprehend and recall brief and
uncomplicated directions; could carry out short, simple instructions; could maintain attention
and concentration adequately for two-hour period; and had adequate adaption abilities if
changes were introduced gradually and work goals were simple. (Tr. 317-20).
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Beginning in August 2009 – over one year after Plaintiff’s alleged onset date –
Plaintiff began seeing William Freeman, M.D. for psychiatric treatment (Tr. 327-35).
Plaintiff saw Dr. Freeman approximately once a month through April 2010 (Tr. 327-35). At
those visits, Dr. Freeman noted that Plaintiff’s psychiatric symptoms came and went. At
some visits, he noted that Plaintiff denied psychosis and his mental processes were within
normal limits (Tr. 329, 331, 333, 334), but at other visits, Dr. Freeman noted that Plaintiff
was experiencing psychosis and was “not good” (Tr. 330). Dr. Freeman adjusted Plaintiff’s
In February 2010, Dr. Freeman completed a disability questionnaire in support of
Plaintiff’s disability application (Tr. 322-26). In the questionnaire, Dr. Freeman checked
boxes indicating that Plaintiff had all of the listed affective disorders and had extreme
limitations in all areas of work-related functioning. Dr. Freeman also opined that Plaintiff
was likely to miss four days of work a month, that his condition will deteriorate under stress,
and that Plaintiff was mentally retarded, but noted that he did not have any documentation of
Plaintiff’s actual IQ. Dr. Freeman concluded that Plaintiff could not sustain full time work
due to his schizophrenia, affective disorder, and mental retardation. (Tr. 322-26).
Billups raises five issues for judicial review:
(1) Whether the ALJ’s RFC is supported by substantial evidence.
(2) Whether the ALJ erred in giving “great weight” to medical opinions which
Plaintiff claims prevented the performance of his past relevant work.
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(3) Whether the ALJ failed to consider the effects of Mr. Billups medications on his
ability to work.
(4) Whether the ALJ’s 12.05C rationale is inadequate and requires reversal.
(5) Whether the Commissioner’s decision should be reversed because the Appeals
Council erroneously denied Mr. Billups’ request for review in light of the material evidence
Plaintiff argues that the ALJ incorrectly found that he has the RFC to perform work at
all exertional levels but was limited to work involving simple one- and two-step functions
and occasional contact with the public, (Tr. 27-31) and incorrectly concluded that, based on
vocational expert testimony, Plaintiff could perform his past relevant work as a fast-food
worker. (Tr. 31). Specifically, Plaintiff argues that this finding is not based on substantial
evidence because the ALJ did not credit the opinion of his treating psychiatrist, Dr. William
Freeman, that Mr. Billups’ mental impairments imposed extreme limitation of functioning
with respect to mental activities required for work activity. (Tr. 324, Medical Source
Statement (Mental)). (Doc. 21 at pp. 4-8). He further argues that the ALJ erred because the
medical opinions to which the ALJ granted “great weight” actually prevented the
performance of Mr. Billups’ past relevant work and the ALJ failed to consider the side
effects of Plaintiff’s medications on his ability to work. (Doc. 21 at pp. 8-10).
A residual functional capacity assessment is used to determine the claimants’ capacity
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to do as much as they are possibly able to do despite their limitations. See 20 C.F.R. §
404.1545(a)(1) (2010). An RFC assessment will be made based on all relevant evidence in
the case record. Id.; Lewis v. 125 F.3d at 1440. At an ALJ hearing, “the [ALJ] is responsible
for assessing [the claimant’s] residual functional capacity.” 20 C.F.R. § 404.1546(c) (2010).
The claimant is “responsible for providing the evidence [the ALJ] will use to make a finding
about [the claimant’s] residual functional capacity.” 20 C.F.R. § 404.1545(a)(3) (2010). The
ALJ is “responsible for developing [the claimant’s] complete medical history, including
arranging for a consultative examination(s) if necessary, and making every reasonable effort
to help [the claimant] get medical reports from [their] own medical sources. Id.; Holladay v.
Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988) (The ALJ is not required to order a
consultative examination unless the record establishes it is necessary to render a fair
decision). The ALJ’s finding must be supported by substantial evidence. “Substantial
evidence is less than a preponderance, but rather such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005)(citations omitted).
The record includes a consultative psychological evaluation performed by Dr. Guy
Renfro. (Tr. 293-295). The ALJ referred to this evaluation noting Dr. Renfro’s observation
that Plaintiff did not put forth full effort during the examination and testing; and therefore,
Plaintiff’s testing scores “likely underestimate[d]  his actual intellectual functioning.” (Tr.
22, 295). Even so, Dr. Renfro estimated that Plaintiff is functioning in the mild range of
mental retardation. (Tr. 295). The ALJ concluded that Plaintiff was limited by his mental
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impairments, but that Dr. Renfro’s opinion supported a finding that Plaintiff could perform
simple, one- and two-step functions despite his limitations.
The record also contains the medical records of Dr. Freeman, Plaintiff’s treating
psychiatrist, documenting psychiatric treatment from July 16, 2009 thru April 23, 2010. Dr.
Freeman diagnosed Mental Retardation (Provisional) and Affective Disorder (Mood) NOS
and Paranoid Schizophrenia with Psychosis and prescribed medications for the two later
conditions. (Tr. 321-22). Based on his treating relationship, Dr. Freeman provided medical
opinions of record expressing that Mr. Billups’ multiple mental impairments would prevent
him from being able to work a full-time job (8 hours a day, 40 hours per week). (Tr. 322).
Dr. Freeman also completed a Medical Source Statement (Mental) opining that Mr. Billups’
mental impairments imposed extreme limitation of functioning with respect to mental
activities required of work activity. (Tr. 324).
The Eleventh Circuit has established that the opinion of a treating physician “‘must be
given substantial or considerable weight unless ‘good cause’ is shown to the contrary.’”
“‘[G]ood cause exists when the: (1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records. Phillips v. Barnhart, 357
F.3d at 1241(citing Lewis, 125 F.3d at 1440). In Lewis, the Eleventh Circuit also established
that the ALJ must clearly articulate the reasons for giving less weight to the opinion of a
treating physician and that the failure to do so constitutes reversible error. 125 F.3d at 1440.
Furthermore, a treating physician’s opinion will be given controlling weight if it is well
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supported by medically acceptable clinical and diagnostic techniques and is consistent with
other evidence in the record. Holley v. Chater, 931 F. Supp. 840, 849 (S.D. Fla. 1996) (citing
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)).
However, the simple fact that a treating physician’s opinion is included in the
evidence does not require the ALJ to follow it but rather the opinion may be given less
weight or dismissed entirely. Washington v. Barnhart, 175 F. Supp. 2d 1340, 1346 (M.D.
Ala. 2001) (finding that the ALJ properly considered the treating physician’s medical
opinions based on the objective medical evidence in the record as a whole it was “entirely
reasonable” when the treating physician’s records and notes were inconsistent). When an
ALJ chooses to reject the opinions of the claimant’s treating physicians there needs to be
sufficient detail set forth by the ALJ for the court to conduct a meaningful review. Pettaway
v. Astrue, Case No. 06-00880-WS-B, 2008 WL 1836738, at *14 (S.D. Ala. Apr. 21, 2008)
(finding that the ALJ erred in rejecting the opinions of a treating physician because
insufficient detail was set forth by the ALJ for the reviewing court to be able to conduct any
kind of meaningful analysis).
The ALJ identified “good cause” to discount the treating doctor’s opinion. (Tr. 19,
418). Indeed, the ALJ found that Dr. Freeman’s opinion was not consistent with his own
treatment notes (Tr. 30-31).
Dr. Freeman noted that Plaintiff made some improvement
during his course of treating Plaintiff.
The records reflect that this improvement
corresponded with Plaintiff’s compliance with his medications and conversely reflect a
decline when Plaintiff failed to comply. (Tr. 327-334). See Winschel v. Comm’r of Soc.
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Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)(good cause exists to discount a treating
physician’s opinion when it is not bolstered by the evidence, evidence supported a contrary
finding, or the treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.) (Citations omitted.)
Further, the ALJ found that Dr. Freeman’s opinion was inconsistent with the rest of
the medical evidence. (Tr. 30-31). Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984) (a
treating physician’s opinion is generally entitled to more weight that a consulting physician’s
opinion; however, an ALJ may reject treating physician’s opinion when it is contrary to the
evidence.) The ALJ correctly noted Dr. Freeman’s opinion that Plaintiff had “extreme”
limitations in all basic mental activities required to work was inconsistent with Plaintiff’s
daily activities (including driving and grocery shopping (Tr. 43, 47-49)), his past work
activity (Tr. 228), and his ability to collect unemployment (Tr. 43), which requires sending
out resumes and going on job interviews (Tr. 31). Moreover, Dr. Renfro, upon examination
of Plaintiff on December 18, 2008, noted that “he did not display any signs of psychotic
symptoms”. (Tr.295) Moore v. Barnhart, 405 F. 3d 1208, 1212 (11th Cir. 2005) (court
found no reversible error where ALJ articulated specific reasons for discounting treating
physician’s opinion, including physician’s failure to account for claimant’s diverse daily
activities or give any specific assessment of claimant’s functional capacity, and physician’s
opinion in a short form was used to support claimant’s food stamp eligibility).
Additionally, the ALJ found that Dr. Freeman’s opinion was internally inconsistent.
The ALJ noted that Dr. Freeman opined that Plaintiff had a mental incapacity evidenced by
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“an inability to follow directions such that the use of standardized measures of intellectual
functioning [was] precluded,” yet also opined that Plaintiff had a full scale IQ of 60 to 70.
(Tr. 31, 326). The ALJ correctly stated that it is impossible for Plaintiff to be so limited that
he was precluded from the use of standardized measures to test his IQ, but had a verified IQ
Even though Dr. Freeman noted that he did not have actual
documentation of Plaintiff’s IQ, the additional testing by Dr. Renfro demonstrated that
Plaintiff had the ability to follow directions well enough to use standardized measures to test
his functioning. (Tr. 31, 293). Also, the ALJ noted that Dr. Freeman’s opinion regarding
Plaintiff’s functional abilities was not based on IQ testing or scores, but rather was based on
Plaintiff’s subjective complaints and his observations. (Tr. 31, 326). See 20 C.F.R.
§404.1527(d)(3) (“The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight we will give that
opinion”); ct. Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1159 (11th Cir. 2004)
(substantial evidence supported ALJ’s decision to discount treating physician’s opinion
when, in addition to other reasons, the opinion appeared to be based primarily upon
plaintiff’s subjective complaints of pain.).
After careful consideration of the Plaintiff’s medical records, the Court finds that the
ALJ correctly gave Dr. Freeman’s opinions “little weight” based upon the reasons explained
above. (Tr. 31). Moreover, conclusory opinions such as Dr. Freeman’s about a claimant’s
ability to work are not entitled to significant weight, as this is a decision reserved solely for
the Commissioner. See 20 C.F.R. §§ 404.1527(d)(1)-(3) (treating source opinions on issues
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that are reserved to the Commissioner are not entitled to and special significance); Caulder
v. Bowen, 791 F. 2d 872, 878 (11th Cir. 1986) (physician’s statement that claimant is
disabled is not dispositive of the issue of disability but must be considered in the
Commissioner’s examination of the totality of the evidence). Thus, the court finds “good
cause” exists for the ALJ to reject Dr. Freeman’s opinion.
Accordingly, based on the
evidence as a whole the Court concludes that the ALJ’s determination of the RFC is
supported by substantial evidence. See Phillips, 357 F.3d at 1232 (quoting 20 C.F.R. §
404.1520 (e) (the ALJ will “assess and make a finding about the [claimant’s] residual
functional capacity based on all the relevant medical and other evidence”)).
Next, Plaintiff argues that the medical opinions to whom the ALJ gave “great weight”
actually support his claim of disability. (Doc. 21 at p. 8). The ALJ gave great weight to Dr.
Gordon Rankart, the State agency mental residual functional capacity consultant. (Tr. 30).
Dr. Rankart opined that Plaintiff could perform simple work involving brief and
uncomplicated directions; short, simple instruction; maintain attention and concentration for
two-hour periods; and could handle changes if they were introduced gradually. (Tr. 317-20).
The ALJ found that Dr. Rankart’s opinion was consistent with the record as a whole. Based
upon the extended discussion above of the medical evidence as a whole, the court concludes
that the ALJ reasonably found Dr. Rankart’s opinion consistent with the record as a whole,
including Dr. Freeman’s treatment notes, Dr. Renfro’s opinion where he noted that Plaintiff
failed to give full effort on his WAIS-III exam, and the record evidence of Plaintiff’s daily
activities and past work history. Ogranaja v. Comm’r of Soc. Sec., 186 F. App’x 848, 851
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(11th Cir. 2006) (unpublished) (The ALJ could give great weight to state agency physicians
where the expert opinions of the state agency physicians were supported by and consistent
with the record as a whole). Also, while the ALJ did not incorporate Dr. Rankart’s assessed
limitations verbatim, he found that Plaintiff could perform simple one-and two-step tasks,
which by definition, largely incorporate Dr. Rankart’s assessed limitations. See 2 0 C.F.R. §
404.1568(a). Moreover, there is no requirement that an ALJ adopt an expert opinion
verbatim, when determining a Plaintiff’s RFC. Lewis, 125 F.3d at 1440 (the residual
functional capacity assessment is an assessment based on all the relevant evidence of a
claimant’s remaining ability to work despite her impairments.)
Next, Plaintiff argues that the ALJ erred by failing to consider the effects of Billups’s
medications upon his ability to work. (Doc. 21 at pp.8-10). Specifically, Plaintiff testified
that his medications make him “sleepy.” (Tr. 44). However, the court has carefully reviewed
the record and finds there is no other record testimony or evidence, including Dr. Freeman’s
treatment notes, that Plaintiff experienced side-effects from his medication except for his
own testimony. The court notes that Dr. Freeman checked a box “yes” indicating that
Plaintiff’s medications affected his ability to work; however, Dr. Freeman failed to expand
on this conclusion and provided no information as to how Plaintiff’s medications affected his
ability to work. (Tr. 325). Thus, the ALJ did not err in failing to conclude Plaintiff’s
sleepiness due to his medication limited his ability to perform a limited range of simple work.
Swindler v. Sullivan, 914 F. 2d 222, 226 (11th Cir. 1990) (when a claimant has not
complained of medication side effects, and the record contains no complaints of side effects
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to treating physicians, there is not substantial evidence to support a finding that side effects
are a significant problem); Holley v. Chater, 931 F. Supp. 840, 850 (S.D. Fla. 1996) (when
the sole evidence of side effects is Plaintiff’s testimony, such “scant” evidence is insufficient
to support a finding of disability). Accordingly, the Court concludes that the ALJ’s
determination of the RFC is supported by substantial evidence. See Phillips, 357 F.3d at
Plaintiff also argues that the ALJ’s 12.05C rationale is woefully inadequate and the
Commissioner’s decision should be reversed on that basis. (Doc. 21 at pp.10-12). As
correctly noted by the ALJ, the 12.05C listing requires a valid, full scale IQ of 60-70 and a
physical or mental impairment imposing an additional and significant work related function.
20 C.F.R. pt. 404 subpt. P, app. 1 § 12.05C. The ALJ concluded that Plaintiff did not meet or
medically equal listing 12.05C because (1) IQ testing was unreliable given that Dr. Renfro
explicitly noted Plaintiff failed to give his full effort, and thus, the test was not necessarily
valid; and (2) Plaintiff did not have any deficits in adaptive functioning as required by
12.05C . (Tr. 25-27). The ALJ thoroughly discussed the Plaintiff’s performance in the eleven
skill areas where Plaintiff must demonstrate “significant limitation in adaptive function in at
least two skill areas” in order to meet 12.05. (Tr. 26-27).
Plaintiff, however, does not provide any arguments that he meest listing 12.05C.
Rather, Plaintiff complains that in considering the eleven factors, the ALJ “inappropriately
pick and chose pieces of evidence.” (Doc. 21 at pp. 10-11). Specifically, he points to Dr.
Freeman’s single notation that Plaintiff “isolates to self” (Tr. 329) as support for the
Page 19 of 26
conclusion that Plaintiff has “significant limitations in adaptive functioning” as to social
skills. However, the ALJ recognized in his RFC that Plaintiff needed to work in a situation
with “only occasional contact with the public.” (Tr. 27). Thus, the ALJ recognized
Plaintiff’s social impairments, but did not conclude based on the record evidence of
Plaintiff’s ability to communicate and cooperate at the hearing and his outings with his
mother that Billups had “significant limitations in adaptive functioning” in the social skills
area. Viewing the evidence as a whole, taking into account evidence favorable as well as
unfavorable to the decision, the Court concludes the ALJ did not err in his conclusion as to
Plaintiff’s social skill level.
Furthermore, Plaintiff complains that the ALJ failed to discuss his difficulties in
school requiring special education intervention, when the ALJ considered his functional
academic skills. (Doc. 21 at p. 11). However, the record shows that Plaintiff was able to
complete the eleventh grade while enrolled in special education courses (Tr. 42).
Furthermore, the ALJ noted that Billups reported he sometimes uses a taxi for transportation
and that he obtained a driver’s license. Finally, the ALJ noted that in January of 2010, Dr.
Freeman noted that Billups judgment, insight, process, relatedness and associations were all
within normal limits. (Tr. 26). Viewing the evidence as a whole, taking into account
evidence favorable as well as unfavorable to the decision, the Court concludes the ALJ did
not err in his conclusion as to Plaintiff’s functional academic skills.
Additionally, Plaintiff complains that the ALJ failed to give any evidentiary support
for his conclusion that “[a]s to safety, the claimant is able to recognize dangerous situations.”
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(Tr. 27). Even so, whether Plaintiff is able to recognize dangerous situations or not will not
change the court’s conclusion that Plaintiff failed to demonstrate that he met or equaled
12.05C. Indeed, in light of Dr. Renfro’s expressly stated concerns about Plaintiff giving his
full effort when tested, which the ALJ acknowledged several times in his opinion, the court
concludes Plaintiff has not demonstrated a “valid” IQ score meeting the 12.05C criteria.
Finally, Plaintiff argues that the Commissioner’s decision should be reversed because
the Appeals Council erroneously denied Billups request for review in light of material
evidence submitted thereto. (Doc. 21 p. 12-13). After, the ALJ rendered an unfavorable
decision, Plaintiff submitted a letter authorized by his mother where she stated that Plaintiff
was enrolled in special education, was traumatized at a young age by certain situations, did
not communicate well, was often fired from jobs, could not read, and was unable to complete
his disability or unemployment forms on his own. (Tr. 339). This evidence, however, is
mostly cumulative of the evidence before the ALJ which was incorporated into his decision.
(See, e.g., Tr. 21 (ALJ acknowledging Plaintiff was in special education courses), Tr. 43
(Plaintiff testifying his mother helped him with his unemployment forms.) The only new
evidence is Plaintiff’s mother’s statement that he was assaulted by another student. (Tr.
339). This evidence does not cast doubt on the ALJ’s decision that Plaintiff can perform the
minimal demands of simple work. Accordingly, the Court concludes that even in light of this
additional evidence, the ALJ’s decision is still supported by “relevant evidence as a
reasonable person would accept as adequate to support [the] conclusion.” Moore, 405 F.3d
Page 21 of 26
VIII. SENTENCE SIX REMAND
Plaintiff also filed a Motion for leave to file evidence with this court. (Doc. 3). This
court ordered briefs on the Motion and Plaintiff filed his brief seeking a sentence six remand
(Doc. 18) to which the Defendant filed a response (Doc. 19). This court granted the Motion
for leave to file evidence to the extent it is probative of a sentence six remand under 42
U.S.C. § 405 (g). The court will now consider whether Plaintiff’s request for a sentence six
remand is due to be granted.
Plaintiff argues that the administrative transcript which was before the ALJ had
“gaping holes” in it due to the lack of Plaintiff’s school records (Doc. 18 p. 1). When
considering whether a sentence six remand is proper, the court does not address the merits of
the ALJ’s decision itself. Instead, a sentence six remand is limited to cases where a plaintiff
shows that new evidence has come to light which was not available at the time of the
administrative proceeding, and that the new evidence might have changed the outcome of the
original proceeding. Melkonyan v. Sullivan, 501 U.S. 89, 97-98 (1991). Sentence six remand
is appropriate only where a plaintiff submits new evidence and further shows that: (1) the
new evidence is material to his disability; and (2) he had good cause for failing to submit the
evidence earlier. See 42 U.S.C. § 405 (g) (under sentence six a court may “order additional
evidence to be taken before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record”); see also Melkonyan, 501 U.S. at 99, 100.
The Court will summarize the additional evidence Plaintiff relies upon for his
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sentence six remand request.
Specifically, this evidence includes Social Security
correspondence (pp. 2-7, 166-70); school records dated from 1994-2006 (pp. 11-116); a onepage school transcript from 2012 (p.8); evidence of a school discrimination claim and a
workplace discrimination claim filed by Plaintiff (pp.9-10, 164-65); medical records dated
1999-2011 (pp. 120-63); and other random correspondence (pp. 117-19). Under the Cherry
standard, the claimant must demonstrate (1) the evidence is new and noncumulative; (2) the
evidence is material; that is relevant and probative so that there is a reasonable possibility
that it would change the administrative result, and (3) there is good cause for failure to
submit it at the administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.
1986)(citing Cherry v. Heckler, 760 F. 2d 1186 (11th Cir. 1985)). The court has reviewed
the evidence presented by Plaintiff and concludes that he fails to meet the Cherry standard
and as a result his request for a sentence six remand is due to be denied.
Specifically, the Social Security correspondence (pp. 2-7, 117-19, and 166-70)
provides no probative evidence of Plaintiff’s alleged disability. The work place and school
discrimination claims filed in 2006 (pp. 9-10 and 164-65) likewise provide no probative
evidence of Plaintiff’s disability and furthermore predates the Plaintiff’s alleged onset date of
April 2008. The Plaintiff’s school records (pp. 11-116) dated 1994-2006 also fail to provide
material evidence of Plaintiff’s disability claim for several reasons. First, the evidence
predates the relevant time period for the ALJ’s decision – April 2008 through November
2010. (Tr. 18-32). Second, the evidence is cumulative because the ALJ considered
Plaintiff’s enrollment in special education classes. (Tr. 21).
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Also, the ALJ found that
Plaintiff had serve impairments of borderline intellectual functioning and dyslexia (Tr. 21),
which is actually confirmed and bolstered by the evidence. Indeed, the evidence shows that a
school worker noted that a diagnosis of mental retardation was rejected because Plaintiff’s IQ
was in the “low average range” (pp. 52, 79) and testing indicated that Plaintiff functioned in
the low average range of intellectual functioning. (p. 91). Also, evidence that Plaintiff was
at some point enrolled in Troy University as an undergraduate, but failed all of his classes (p.
8) provides no probative evidence of Plaintiff’s disability.
The remainder of the evidence consists of medical records, some of which show that
Plaintiff had early childhood and continuing throat and ear problems and had a tonsillectomy
(pp.123-26 and 160) and went to the hospital for vertigo (pp. 161-164), but this evidence is
not material to Plaintiff’s claims concerning his mental impairments. Other medical records
show that in March 2011, Plaintiff presented to the hospital with suicidal ideations and show
that he was a victim of abuse by a classmate when he was 13 years old. (pp. 121-22 and 12759).
Plaintiff argues that this evidence establishes that he had schizophrenia and post
traumatic stress disorder (“PTSD”) (Doc. 18 at pp.2-3). However the ALJ concluded based
upon Dr. Freeman’s medical records (Tr. 322-36) and the record evidence as a whole, that
Plaintiff had the severe impairment of paranoid schizophrenia with psychosis and affective
disorder. (Tr. 21). Indeed, the additional medical evidence from Dr. Freeman, a letter dated
May 2012, states that Dr. Freeman has treated Plaintiff for schizoaffective disorder since July
2009 and that Plaintiff was last seen on May 7, 2012 for medication management. (p. 119).
Accordingly, the court concludes that the additional medical records are either not relevant to
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Plaintiff’s claims or are cumulative of the evidence which was before and considered by the
ALJ. See Melkonyan, 501 U.S. at 98; Caulder, 791 F. 2d at 877.
Plaintiff acknowledges that this evidence “was in existence prior to the Appeals
Council’s notice of determination”, but asks this court to find “good cause” for his failure to
present the additional evidence until now based on “his intellectual deficiencies and
schizophrenia with accompanying psychosis and PTSD.” (Doc. 18 at p. 3). Plaintiff cites to
no law which recognizes Plaintiff’s mental deficiencies as good cause for failure to submit
existing evidence at the administrative level. Moreover, Plaintiff makes no other argument to
establish good cause for his failure to present this evidence. See Cannon v. Bowen, 858 F. 2d
1541, 1546 (11th Cir. 1988) (The good cause requirement is satisfied when the evidence did
not exist at the time of the administrative proceedings). Accordingly, the court concludes
that Plaintiff fails to demonstrate that a sentence six remand is appropriate in this instance
and the court cannot consider newly-submitted evidence in determining whether the
Commissioner’s position is supported by substantial evidence. See Melkonyan, 501 U.S. at
Pursuant to the findings and conclusions detailed in this Memorandum Opinion,
the Court concludes that the ALJ’s non-disability determination is supported by
substantial evidence and proper application of the law. It is, therefore, ORDERED that
the decision of the Commissioner is AFFIRMED.
A separate judgment is entered herewith.
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DONE this 27th day of December, 2013.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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