Whitman v. Astrue (CONSENT)
MEMORANDUM OPINION AND ORDER: 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. Signed by Honorable Judge Terry F. Moorer on 5/27/2014. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JIMMY LEE WHITMAN,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
CASE NO. 2:13-cv-0017-TFM
MEMORANDUM OPINION AND ORDER
In January 2010, Jimmy Lee Whitman (APlaintiff@ or AWhitman@) applied for
supplemental security income under Title XVI and disability insurance benefits (ADIB@)
under Title II of the Social Security Act (Athe Act@). After being denied, Whitman timely
filed for and received a hearing before an administrative law judge (AALJ@) who rendered
an unfavorable decision on August 16, 2011 (Tr. 7-28). The Appeals Council denied
Plaintiff’s request for review on November 6, 2012. (Tr. 1-6). 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 decision.
I. NATURE OF THE CASE
Whitman seeks judicial review of the Commissioner=s decision denying his
application for disability insurance benefits. United States District Courts may conduct
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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
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.
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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).
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. '
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
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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
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.
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).
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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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, 416.920 (2010).
(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
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 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
This subpart is also referred to as Athe Listing of Impairments@ or Athe Listings.@
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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 Guidelines4 (Agrids@) or hear testimony from a vocational expert (“VE”). Id.
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 43 years old on his alleged onset date and was 45 at the time of the
ALJ’s decision. (Tr. 143). On his disability report, Plaintiff stated that he had a ninth
grade education, that he did not attend special education classes, and that he could read
and understand English and write more than his name in English.
(Tr. 170, 172).
However, at the evidentiary hearing Whitman testified that he could not read or write, that
he failed the Sixth grade at least once with all failing grades in all subjects, and that he
was 13 years and 7 months old when he dropped out of school. (Tr. 52) He further
testified that he was placed in special education classes in Clanton, Alabama. (Tr. 53).
School records from 1975 to 1980, show that in the 1975 to 1976 school year,
Plaintiff received satisfactory grades in all subject areas and had 55 days of unexcused
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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absences out of 185 days. In the 1976 to 1977 school year, Plaintiff failed every subject,
but had 118 unexcused absences. In the 1977 to 1978 school year, Plaintiff had only 22
days unexcused absences and his grades ranged from an F in spelling to a B in physical
education. The rest of his grades were C’s and D’s. In the 1978 to 1979 school year,
Plaintiff had 44 unexcused absences out of 180 days and failed all of his classes.
Plaintiff’s teachers remarked that Plaintiff needed to stay in school so he could “improve
in his studies”. (Tr. 232-34). In 1997, testing demonstrated that he was in the “low”
range (0-15 national percentile) academically in reading, math, language, and spelling.
(Tr. 245). Between late 1978 and early 1980, Plaintiff was suspended from school nine
times for misbehavior including fighting with other students, playing with matches,
smoking, and disrupting class. (Tr. 235-44).
Plaintiff has past work experience as a loader/operator, skidder operator, dump
truck driver, and logger. (Tr. 56-57, 173). Whitman testified at the hearing that he had a
commercial driver’s license. (Tr. 35). At the hearing he also described handling money
on his own during times when he was working away from home. (Tr. 40-41). He
testified that he had taken out loans from the bank for big purchases such as motorcycles
Plaintiff discussed the details of his work injury in 1985 and
subsequent rehabilitation. (Tr. 46-49). Plaintiff also testified that he has had difficulty
dealing with his marital separation and said that when his wife left him he was drinking
30 to 40 beers a day. (Tr. 50). He reported that he always had difficulty in school, but
stated that he did not think he was mentally retarded. (Tr. 68).
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The ALJ concluded that the plaintiff was not disabled within the meaning of the
Social Security law.
In reaching his disability determination, the ALJ
identified multiple severe medical impairments including borderline intellectual
functioning, major depressive disorder, alcohol abuse disorder, chest pain of uncertain
etiology and status post multiple injuries from 1985 with residual chronic back pain. (Tr.
13). The ALJ ruled that the plaintiff, in spite of these severe impairments, could perform
his past relevant work as a loader operator, skidder operator and dump truck driver. (Tr.
24). The ALJ concluded that Plaintiff could not, however, perform his past relevant work
as a logger, because this work was performed at the “heavy exertional level”. (Tr. 24). In
reaching his conclusion, the ALJ specifically addressed the issue of whether the
plaintiff’s medical or psychological problems satisfied the criteria of any of the “Listings”
found in the “Listing of Impairments” in order to establish presumptive disability under
20 C.F.R. 404.1525, Appendix 1, 12.02, 12.04 and 12.05. (Tr. 16).
V. MEDICAL HISTORY
In January 2010, Plaintiff presented to the emergency room complaining of pelvic
pain resulting from his fall down the stairs a few days earlier. Plaintiff reported a past
history of a broken pelvis, back and neck.
Plaintiff’s affect, behavior, and
communication were noted to be within normal limits. (Tr. 251). X-rays of the right
femur and hip showed no fracture, dislocation, or other acute abnormality. (Tr. 258). He
was diagnosed with right hip contusion. (Tr. 253).
In March 2010, Hirenkumar M. Jani, M.D., examined Plaintiff in connection with
his application for benefits. Plaintiff reported he had injured his back in an accident at
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work in 1985, and had to undergo physical therapy to ambulate independently. He rated
his pain as eight out of ten and said that sitting and riding increased his pain. He stated he
used a transcutaneous electrical nerve “TENS” machine that he had borrowed. (Tr. 260).
Plaintiff’s physical examination showed negative straight leg raising tests, full muscle
strength, and normal sensation and reflexes. Dr. Jani assessed chronic back pain and
opined Plaintiff could lift and carry 100 pounds occasionally and 50 pounds frequently
and had no other restrictions. (Tr. 262).
In December 2010, Plaintiff presented to the nurse practitioner complaining of
chest pain for the past month. Plaintiff’s blood pressure was elevated. He was advised to
go to the emergency room. (Tr. 283). On February 2011, Plaintiff consulted with Dr.
Eric Crum, a cardiologist, for evaluation of chest pain and shortness of breath. Plaintiff
reported left-sided chest soreness that was not exertional and that had been constant for at
least a month. He also reported left arm numbness and an episode of palpitations. (Tr.
293). Plaintiff explained that he smoked, drank a 12 pack of beer every day, and did not
exercise. (Tr. 294). Plaintiff complained of depression, anxiety, and not sleeping at
night, but denied memory loss and confusion. (Tr. 296). Dr. Crum assessed atypical
chest pain with multiple coronary artery disease risk factors, dyspnea on exertion with
long history of tobacco abuse and probable chronic obstructive pulmonary disease, high
blood pressure, high cholesterol, alcohol and tobacco abuse, remote history of ulcers,
history of arthritis, and history of trauma with a tree falling on him in 1985. (Tr. 297-98).
Dr. Crum scheduled diagnostic testing, and counseled Plaintiff to stop smoking. (Tr.
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Emergency room treatment notes dated March 5, 2011 show Plaintiff reported he
had been having chest pain that had started three hours earlier and that he had been
having chest pain on and off for a year. (Tr. 273). On examination, Plaintiff was fully
oriented and had a normal mood and affect and normal strength and sensation. (Tr. 274).
Plaintiff underwent cardiac catheterization on March 22, 2011, which showed normal
coronary function with arteries of normal ventricular size, moderately elevated left
ventricular end diastolic pressure, and no significant mitral regurgitation. Dr. Crum
concluded Plaintiff’s chest pain appeared to be noncardiac. He planned vigorous risk
factor modification and consideration of noncardiac causes of chest discomfort. (Tr.
On March 31, 2011, Donald W. Blanton, Ph.D., examined Plaintiff at the request
of his attorney. Plaintiff reported that after his accident in 1985, he recovered and was
able to work, but that he had experienced an increase in pain over the past few years. (Tr.
321). Plaintiff also complained of chest pain, depression, high blood pressure, and
asthma. (Tr. 321). Plaintiff admitted that he abused alcohol for 25 years, drinking 30 to
40 beers a day, and a pint of whiskey each day, but reported that he currently drank only
once or twice a week and usually less than six beers at a time.
Dr. Blanton conducted a mental status examination and interview with Whitman
and administered to him the Wechsler Adult Intelligence Scale-IV (“WAIS –IV”) and a
Wide Range Achievement Test (Revised III).
On the WAIS– IV, Mr.
Whitman scored a Verbal Comprehension Index of 61, a Perceptual Reasoning Index of
72, a Working Memory Index of 60, a Processing Speed Index of 62 and a full scale IQ of
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58. (Tr. 323). The scores on the Wide Range Achievement Test demonstrate that
Plaintiff is reading at at first grade level, spelling at a first grade level, and performing
arithmetic at a second grade level. (Tr. 323). Dr. Blanton stated that the administration
of the Minnesota Multiphasic Personality Inventory was omitted due to a combination of
plaintiff’s low intellect and his poor reading ability. (Tr. 324).
Dr. Blanton also commented that the score on the WAIS-IV was considered to be
“valid”and that the scores “ . . . may represent a drop in his intellect over time due to his
alcohol abuse.” (Tr. 324).
However, Dr. Blanton further stated that in his opinion
Plaintiff “would likely have been functionally illiterate throughout his lifetime and likely
[had] a very low intellect even before his alcohol abuse.” (Tr. 324). Based on school
records and psychmetric testing, Dr. Blanton diagnosed “mild mental retardation” (Tr.
324). Dr. Blanton stated
“[i]t is my opinion that [Plaintiff’s] intellect has been at this present level
for atleast five years and perhaps throughout his life-time. It is my opinion
that his anxiety and depression problems have been present at this level for
at least one year. He is also likely to deteriorate emotionally if he is placed
under stress, especially that of a job.”
(Tr. 325). Dr. Blanton also identified significant functional restrictions on Plaintiff’s
ability to maintain attention and concentration and pace for at least two hours and to
respond to customary work pressures. (Tr. 325).
Whitman raises two issues for judicial review:
(1) Whether the evidence of record establishes that the Plaintiff is presumptively
disabled under 12.05 (B) of the “Listing of Impairments”?
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(2) Whether there is credible evidence in the record upon which the ALJ could rely
to substantiate his conclusions that the Plaintiff is functioning intellectually in the
Plaintiff argues on the basis of his past school records and the diagnosis made by
Dr. Blanton that he suffers from “mild mental retardation” [Tr. 324], that the record
evidence establishes that he is presumptively disabled under 12.05 (B). In general, a
claimant meets the criteria for “presumptive disability” under Listing 12.05 B by
presenting a valid IQ score of 59 or less as well as evidence of an additional mental or
physical impairment significantly affecting the claimant’s ability to work. Crayton v.
Callahan, 120 F. 3d 1217, 1219-20 (11th Cir. 1997). Here, the ALJ recognized that
Plaintiff received a full scale IQ score of 58 at Dr. Blanton’s examination in March 2011,
and that Dr. Blanton diagnosed Plaintiff with mild mental retardation. (Tr. 18, 323). The
ALJ concluded, however, that Plaintiff functioned in the borderline intellectual
functioning range given his level of adaptive functioning skills. (Tr. 13, 18-21). The
Diagnostic and Statistical Manual of Mental Disorders - Text Revision (DSM-TR) states
The essential feature of Mental Retardation is significantly
subaverage general intellectual functioning (Criteria A) that is
accompanied by significant limitations in adaptive
functioning in at least two of the following areas:
communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety (Criteria B).
The onset must occur before age 18 years. (Criteria C).
DSM-TR at 39.
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Indeed, the ALJ recognized that Plaintiff had a fairly consistent work history,
working in the logging industry in different semi-skilled positions. (Tr. 20). The ALJ
discussed the vocational expert’s testimony that these jobs involved the operation of
expensive and dangerous equipment and that the vocational expert did not think a
mentally retarded person could have performed those jobs. (Tr. 20, 58-60). The ALJ also
pointed out that Plaintiff’s earnings were performed at the substantial gainful activity
level for many years between 1987 and 2009 and represented a significant level of
adaptive functioning over an extended period of time. (Tr. 20, 161).
The ALJ also discussed Plaintiff’s academic history, and acknowledged that
Plaintiff’s school records reflected poor and failing grades and that he dropped out of
school. (Tr. 18-19, 232-45). However, the ALJ closely examined the Plaintiff’s school
records and concluded that Plaintiff’s poor academic performance was related, at least in
part, to his frequent unexcused absences. (Tr. 18). For example, for the 1976-1977
school year, Plaintiff had 118 unexcused absences and flunked every subject and in the
1978 to 1979 school year, Plaintiff had 44 unexcused absences and again flunked all his
classes. But in the 1977 to 1978 school year, Plaintiff had only 22 unexcused absences
and received mostly passing grades. Indeed, Plaintiff’s teachers noted that Plaintiff
needed to attend school to improve his grades. (Tr. 232). The ALJ also concluded that
Plaintiff’s numerous suspensions seemed to affect his school performance. (Tr. 18-19).
Indeed, in the school year that Plaintiff received mostly passing grades, there were no
suspensions, but in the next two school years, when Plaintiff flunked all his classes, he
received nine suspensions. (Tr. 235-44).
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The ALJ also discussed Plaintiff’s activities of daily living, which had included
caring for himself, handling money, traveling for work, shopping, and even obtaining
loans to finance large purchases. (Tr. 21, 40-41, 45, 193). Plaintiff also had obtained a
commercial driver’s license (Tr. 35), which as the ALJ noted (Tr. 20), involved passing a
test and required the ability to read English sufficiently to understand traffic signs and
signals and to make entries on reports and records.
See 49 C.F.R § 391.11(b)(2)
(requiring drivers of commercial motor vehicles to be proficient in English). Notably,
Plaintiff, himself, testified at the hearing that he did not believe he is mentally retarded.
The ALJ also noted Plaintiff, who completed his own function report, stated he
had no trouble concentrating unless he was in severe pain and that he could follow written
Thus the court concludes substantial evidence
supports the ALJ’s conclusion that Plaintiff failed to show sufficient limitations in
adaptive functioning to meet Listing 12.05. See, e.g., Harris v. Comm’r of Soc. Sec., 330
F. App’x 813, 815 (11th Cir. 2009) (unpublished) (ALJ reasonably found that, although a
claimant attended special education classes during school, he did not meet Listing 12.05
where he had held several jobs and could handle his own personal care.)
Plaintiff further argues that the ALJ erred in finding that he had borderline
intellectual functioning, rather than mental retardation. (Pl. Br. at 10-12). The ALJ
discounted Dr. Blanton’s opinion that Plaintiff had mild mental retardation in concluding
that Plaintiff had borderline intellectual functioning.
Dr. Blanton, a
psychologist, did not treat Plaintiff regularly; rather he met Plaintiff once for an
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examination made in connection with Plaintiff’s disability claim. Thus, his opinion is not
entitled to controlling weight. See 20 C.F.R.§ 404.1527(d)(2) (“Generally, we give more
weight to opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s)”); Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155,1160 (11th
Cir. 2004) (The rule giving “great weight” to a treating medical source’s opinion does not
apply where a medical source examined the claimant only one time.)
The ALJ considered and discussed Dr. Blanton’s opinion but gave it “little weight”
because it was not bolstered by the other evidence of record discussed more fully above.
See Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir.1987) (good cause to discount
physician’s opinion exists when opinion not bolstered by other record evidence.)
Furthermore, no other examining or treating physician noted any evidence of mental
Moreover, Plaintiff displayed logical thoughts and conversations, was
consistently able to accurately describe his symptoms and report his medical history, and
was consistently noted to have normal affect, behavior, and communication. (Tr. 251,
260, 274, 279, 283, 293, 296, 347). Accordingly, the court concludes that the ALJ’s
conclusion that Plaintiff does not meet 12.05B of the Listing of Impairments and has
borderline intellectual functioning is supported by substantial evidence. Miles, 84 F.3d 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
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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.
DONE this 27th day of May, 2014.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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