Cannon v. Colvin (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 5/31/2017. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
RICKY LEE CANNON,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Civil Action No.: 3:16cv382-WC
Ricky Lee Cannon (“Plaintiff”) filed applications for a period of disability and
disability insurance benefits and for supplemental security income on June 27, 2013. The
applications were denied at the initial administrative level. Plaintiff then requested and
received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing,
the ALJ issued an unfavorable decision, and the Appeals Council denied Plaintiff’s request
The ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129,
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill shall be substituted for Acting
Commissioner Carolyn W. Colvin as the Defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L.
131 (11th Cir. 1986). The case is now before the court for review of that decision under
42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the
conduct of all proceedings and entry of a final judgment by the undersigned United States
Magistrate Judge. Pl.’s Consent to Jurisdiction (Doc. 9); Def.’s Consent to Jurisdiction
(Doc. 10). Based on the court’s review of the record and the briefs of the parties, the court
AFFIRMS the decision of the Commissioner.
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to 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).3
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
(4) Is the person unable to perform his or her former occupation?
No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with
respect to Social Security matters were transferred to the Commissioner of Social Security.
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above 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 “not
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The burden of proof rests on a claimant through Step Four. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step One through
Step Four. At Step Five, 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. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical and
other evidence. Id. It may 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 (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert
McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits brought under Title II of the Social Security Act. Supplemental security income
cases arising under Title XVI of the Social Security Act are appropriately cited as authority in Title
II cases, and vice versa. See, e.g., Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th
Cir. 2012) (“The definition of disability and the test used to determine whether a person has a
disability is the same for claims seeking disability insurance benefits or supplemental security
(“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. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court must
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42
U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts
of the record which support the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied in
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was thirty-five years old on the date of the hearing before the ALJ. Tr. 44.
Plaintiff reached the tenth grade in high school. Tr. 46. Following the administrative
hearing, and employing the five-step process, the ALJ found at Step One that Plaintiff “has
not engaged in substantial gainful activity since May 11, 2009, the alleged onset date[.]”
Tr. 24. At Step Two, the ALJ found that Plaintiff suffers from the following severe
impairments: “history of substance abuse, personality disorder, borderline intellectual
functioning, and schizoaffective disorder.” Tr. 24. At Step Three, the ALJ found that
Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments[.]” Tr. 24-25. Next, the ALJ
articulated Plaintiff’s RFC as follows:
the claimant has the residual functional capacity to perform a full range of
work at all exertional levels, but would have certain nonexertional
limitations. Specifically, the claimant can understand and carry out simple
instructions consistent with the performance of simple, unskilled work of a
routine, repetitive nature. He can perform simple, work-related decision
making, but cannot perform any complex tasks or planning, independent
goal-setting, or negotiation. He can tolerate occasional interaction with
supervisors and co-workers, but no interaction with members of the general
public. Preferably, he would work independently rather than as part of a
team. He can tolerate minor, infrequent changes within the workplace.
Tr. 26. At Step Four, the ALJ concluded that Plaintiff “has no past relevant work[.]” Tr.
33. However, the ALJ next found that, given Plaintiff’s RFC, and based upon the testimony
of the VE, “there are jobs that exist in significant numbers in the national economy that the
claimant can perform.” Tr. 34. The ALJ noted the following representative occupations:
“Yard Worker,” “Sales Route Driver-Helper,” “Automatic Carwash Attendant,” and
“Inspector/Hand Packer.” Tr. 34. Accordingly, at Step Five, the ALJ determined that
Plaintiff “has not been under a disability . . . from May 1, 2009, through the date of this
decision[.]” Tr. 35.
Plaintiff presents two issues in his “Statement of the Issues,” arguing that the ALJ’s
decision should be reversed because (1) “the Appeals Council erroneously denied Mr.
Cannon’s request for review in light of the material evidence submitted thereto[,]” and (2)
the ALJ “fail[ed] to resolve inconsistencies in the administrative record with actual
rationale prior to issuing his unfavorable decision.” Pl.’s Br. (Doc. 12) at 3.
The Appeals Council’s Denial of Review.
Plaintiff first contends that the Commissioner’s decision should be reversed because
the Appeals Council should not have denied his request for review of the ALJ’s decision
in light of additional evidence that was submitted to the Appeals Council. The new
evidence to which Plaintiff alludes “consists of education records evidencing the fact that
Mr. Cannon was placed in Educably Mentally Retarded (EMR) classes while in school
and scored a 69 on the WISC-R intelligence test on April 29, 1992.” Pl.’s Br. (Doc. 12) at
4 (emphasis in original). Plaintiff asserts that the Appeals Council erred in denying his
request for review despite this new evidence because
there is a reasonable possibility that the new evidence provided would
change the administrative outcome because such evidence: 1) provides
objective corroboration to confirm his testimony that he received special
education services; 2) provides the only evidence of intelligence testing in
which the scores received support 12.05C listing level severity; and 3)
directly conflicts with the examining physician’s opinion in which the ALJ
granted significant weight thereto.
Id. at 5.
The education records Plaintiff believes warranted the Appeals Council granting his
request for review show that, indeed, Plaintiff was enrolled in “EMR” math, history, and
language classes in the 1990-91 school year. Tr. 278. The records further appear to
indicate that Plaintiff was enrolled in “EMR EXP. IND” and “EMR EXP. ART” the
following year. Tr. 278. There is no indication that Plaintiff’s other courses (including
English, reading, and art in 1990-91 and English, science, math, history, and reading in
1991-92) were special education classes. Likewise, there is a notation in the records that,
as Plaintiff indicates, Plaintiff received a score of 69 on a WISC-R test administered on
April 29, 1992. Tr. 280. Neither the actual test results or any document evidencing
Plaintiff’s score or other circumstances surrounding the test are included in the education
records submitted to the Appeals Council. In denying Plaintiff’s request for review, the
Appeals Council considered these educational records, as well as Plaintiff’s attorney’s brief
to the Council addressing the purported significance of the records, but nevertheless “found
no reason under our rules to review the Administrative Law Judge’s decision[.]” Tr. 1, 2,
The Eleventh Circuit Court of Appeals recently summarized circuit precedent
governing the Appeals Council’s review of new evidence submitted in conjunction with a
request to review an ALJ’s decision:
Generally, a claimant may present new evidence at each stage of the
administrative process. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d
1253, 1261 (11th Cir. 2007); 20 C.F.R. § 404.900(b). If a claimant presents
evidence after the ALJ's decision, the Appeals Council must consider it if it
is new, material, and chronologically relevant. 20 C.F.R. § 404.970(b). New
evidence must not be cumulative of other evidence in the record. See Caulder
v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). The evidence is material if
“there is a reasonable possibility that the new evidence would change the
administrative outcome.” Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir.
1987). The Appeals Council must grant the petition for review if it finds that
the ALJ's “action, findings, or conclusion is contrary to the weight of the
evidence,” including the new evidence. Ingram, 496 F.3d at 1261 (quotation
On appeal, “when a claimant properly presents new evidence to the
Appeals Council [but the Appeals Council denies review], a reviewing court
must consider whether that new evidence renders the denial of benefits
erroneous.” Ingram, 496 F.3d at 1262.
Beavers v. Soc. Sec. Admin., Comm’r, 601 F. App’x 818, 821-22 (11th Cir. 2015).
Importantly, the Appeals Council “is not required to provide a detailed explanation of a
claimant’s new evidence when it denies a petition for review.” Id. (citing Mitchell v.
Comm’r, Soc. Sec. Admin., 771 F.3d 780, 783-85 (11th Cir. 2014)). Unless the record
provides a “basis for doubting the Appeals Council’s statement that it considered” the
additional evidence, the Appeals Council’s summary statement that it reviewed and
considered the claimant’s additional evidence is sufficient to indicate that it has satisfied
its obligation to review the evidence. Id.
Here, as discussed above, the Appeals Council indicated that it considered “the
additional evidence” submitted by Plaintiff, but that it still “found no reason . . . to review
the Administrative Law Judge’s decision[.]” Tr. 1, 2. Because the record does not provide
a basis for doubting the Appeals Council’s statement, under the authority set forth above,
the undersigned must conclude that the Appeals Council sufficiently discharged its
obligation to review Plaintiff’s newly submitted evidence. Thus, this court must determine
simply whether Plaintiff’s “‘new evidence renders the denial of benefits erroneous.’”
Beavers, 601 F. App’x at 822 (quoting Ingram, 496 F.3d at 1262). As discussed previously,
Plaintiff appears to assert that reversible error occurred in this case because the new
evidence “provides objective corroboration to confirm his testimony that he received
special education services,” “provides the only evidence of an administration of
intelligence testing in which the scores received support 12.05C listing level severity,” and
because it “directly conflicts with the examining physician’s opinion in which the ALJ
granted significant weight thereto.” Pl.’s Br. (Doc. 12) at 5.5 The court does not agree and
will below set forth its reasoning.
Records establishing receipt of special education services.
Plaintiff first argues that the Appeals Council erred in denying review because the
education records submitted to the Council corroborate Plaintiff’s testimony that he
Plaintiff’s argument appears to conflate the standard governing whether the Appeals Council is
received special education services while enrolled in school. At the hearing before the
ALJ, Plaintiff answered affirmatively when the ALJ asked whether he was “ever in special
education classes.” Tr. 59. The ALJ recounted Plaintiff’s testimony in his opinion. Tr. 27
(“He had some trouble learning when he was in school and therefore was placed in special
education classes.”). Later, in describing Plaintiff’s mental residual functional capacity,
the ALJ acknowledged that Plaintiff “does have some cognitive deficits. . . . He reports
to have been in special education, although his report is not corroborated by objective
evidence such as school records.” Tr. 31. Notwithstanding the lack of school records
showing Plaintiff’s special education placement, the ALJ found that Plaintiff “has a slow
thought process, limited fund of information, concrete abstract thinking, and some attention
and memory difficulties.” Tr. 31.
Plaintiff does not explain how corroboration of his testimony that he received
special education classes rendered the Appeals Council’s denial of review erroneous. First,
required to review new evidence with the standard governing whether the Appeals Council erred
in denying review despite the new evidence. For instance, Plaintiff argues that “there is a
reasonable possibility that the new evidence provided would change the administrative outcome”
of his disability claim. Pl.’s Br. (Doc. 12) at 5 (emphasis in original). However, as discussed in
the text of this opinion, the “reasonable probability” standard governs whether the Appeals Council
must consider new evidence, not whether it must grant review on the basis of the new evidence.
See Beavers, supra. Here, as shown above, the Appeals Council unequivocally indicated that it
considered the new evidence, thereby confirming that it found the evidence “new, material, and
chronologically relevant.” Nevertheless, despite the “reasonable possibility” that Plaintiff’s new
evidence would have changed the administrative outcome before the ALJ, the Appeals Council
ultimately concluded that the evidence was not so compelling that the Appeals Council was
required to grant review of the administrative decision. In other words, the Appeals Council
necessarily determined that, despite the new evidence, the ALJ’s decision was not contrary to the
weight of all of the evidence in the record, including the new evidence. It is that decision that this
court must review for error. Beavers, 601 F. App’x at 822.
while the ALJ noted the absence of corroborating records, it does not appear that the ALJ
discredited or disbelieved Plaintiff’s testimony about special education. Second, despite
the lack of corroborating evidence about Plaintiff’s special education placement, the ALJ
plainly found that Plaintiff has “some cognitive deficits,” as well as “a slow thought
process,” “limited fund of information,” and “some attention and memory difficulties.” Tr.
These deficits led the ALJ to articulate numerous nonexertional limitations to
Plaintiff’s RFC, including limiting him to “simple instructions consistent with the
performance of simple, unskilled work of a routine, repetitive nature. He can perform
simple, work-related decision-making, but cannot perform any complex tasks or planning,
independent goal-setting, or negotiation.” Tr. 26. Plaintiff has not shown that, given these
limitations and the fact that the ALJ did not overtly dismiss his testimony about special
education, definitive corroboration of such placement required the Appeals Council to
review the ALJ’s decision. In other words, mere placement in special education classes
does not merit a finding of intellectual disability, and where, as here, the ALJ
acknowledged the claimant’s cognitive deficits and crafted an RFC accounting for such
deficits, a claimant’s submission of records before the Appeals Council showing that the
claimant indeed was placed in some special education classes does not warrant a
determination that the ALJ erred in his RFC determination.
Records reflecting Plaintiff’s IQ score in 1992.
Plaintiff next argues that the Appeals Council should have reviewed the ALJ’s
decision because the education records he submitted to the Council indicate that he
received an IQ score of 69 on the WISC-R in 1992. According to Plaintiff, this score
“equates to a score needed in order to meet Listing 12.05C.” Pl.’s Br. (Doc. 12) at 5.
Plaintiff further asserts that he meets Listing 12.05C because “the administrative record
reveals [Plaintiff] continued to experience deficits in adaptive functioning in his adult life
as he never obtained a driver’s license, exhibited marginal vocabulary, and . . . had no past
relevant work experience.” Id. (emphasis in original) (footnote omitted).
Plaintiff alleged disability based on “mental problems.” Tr. 81, 211, & 213. The
ALJ found that Plaintiff does not meet any of the listings for mental impairments,
specifically referencing listings for borderline intellectual functioning, schizoaffective
disorders, personality disorder, and substance addiction disorder. Tr. 25. In seeking review
of the ALJ’s decision, Plaintiff did not expressly argue that the school records he submitted
to the Appeals Council, considered in conjunction with the evidence already in the record,
establish that he meets Listing 12.05C. Rather, Plaintiff argued that the new evidence
“directly conflicts with Dr. Gam’s estimate” that Plaintiff did not have “a long history of
mental slowness or mental retardation.” Tr. 281 (internal quotation omitted). Plaintiff
concluded that, because “the ALJ assigned significant weight to Dr. Gam’s medical
opinions in which are in direct conflict” with the submitted school records, “the Appeals
Council should reverse and remand Mr. Cannon’s case.” Tr. 281.
Listing 12.05 covers the mental disorder now described as “Intellectual Disorder.”6
While Plaintiff is correct that an IQ score of 69, if valid, is relevant in assessing whether a
Effective September 2, 2013, the Social Security Administration replaced the term “mental
claimant meets the requirements of Listing 12.05(C), Plaintiff’s argument gives short shrift
to his predicate obligation to fully satisfy the introductory paragraph of Listing 12.05
before proceeding to consider whether he satisfies the criteria of subsection C. The
introductory paragraph reads as follows: “Intellectual disability 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.” Although Plaintiff’s IQ score, if credited as valid,
creates a rebuttable presumption that he manifested deficits in adaptive functioning before
the age of twenty-two, the IQ score alone does not satisfy the diagnostic criteria of the
introductory paragraph if there is sufficient evidence in the record to rebut the presumption
of deficits in adaptive functioning created by the IQ score. See e.g., Lowery v. Sullivan,
979 F.2d 835, 837 (11th Cir. 1992) (citations omitted) (“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. This court, however, has recognized that a valid I.Q. score need not be
conclusive of [intellectual disability] where the I.Q. score is inconsistent with other
evidence in the record on the claimant’s daily activities and behavior.”). In particular,
evidence of a claimant’s activities of daily living can rebut the presumption created by an
retardation” with “intellectual disability” in the Listing of Impairments. The Agency now uses the
term “intellectual disorder.”
IQ score in the range identified by subsection C of the Listing. Hodges v. Barnhart, 276
F.3d 1265, 1269 (11th Cir. 2001).
Neither Listing 12.05 nor the Social Security Regulations provide a definition of
precisely what is meant by “deficits in adaptive functioning.” As articulated by Defendant,
see Def.’s R. (Doc. 13) at 7, the Social Security Regulations describe “adaptive activities”
as “cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a
residence, caring appropriately for your grooming and hygiene, using telephones and
directories, and using a post office.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00C(1).
Furthermore, the Social Security Administration’s Program Operations Manual System
(“POMS”) imparts that adaptive functioning refers “to the individual’s progress in
acquiring mental, academic, social and personal skills as compared with other unimpaired
individuals of his/her same age.” Soc. Sec. Admin., POMS, DI 24515.056(D)(2) (2012).
Likewise, the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) explains
that adaptive functioning broadly “refer[s] to how well a person meets community
standards of personal independence and social responsibility, in comparison to others of
similar age and sociocultural background.” American Psychological Association, DSM-V,
p. 37. The Eleventh Circuit has favorably cited both definitions in applying Listing 12.05.
See, e.g., Schrader v. Acting Comm’r of the Soc. Sec. Admin., 632 F. App’x 572, 576 (11th
Cir. 2015); id. at n.3.
The Commissioner points to evidence of Plaintiff’s activities of daily living to rebut
Plaintiff’s argument that he meets Listing 12.05(C) due to his IQ score and purported
deficits in adaptive functioning. Def.’s Br. (Doc. 13) at 7-8. Indeed, the ALJ opined that
Plaintiff “perhaps [has] a mild restriction” in his activities of daily living. The ALJ found
The record shows that the claimant can take care of his personal needs
without assistance. He does some household chores and yard work. He goes
outside one or two times a day by riding in a car. He goes fishing, watches
television, and listens to the radio. He goes outside daily or to places without
having someone having to accompany him.
Tr. 25. As the ALJ recounted, there is substantial evidence in the record that Plaintiff is
able to function independently and responsibly in accord with community standards.
Although he was separated at the time of the hearing before the ALJ, Plaintiff was married.
Tr. 45. He visits with family members when he gets bored. Tr. 54. He works around the
house, including taking out the garbage, cleaning the floors, gathering dirty laundry, and
helping with grocery shopping. Tr. 55-56. He does yardwork for two hours at a time
without needing help or encouragement. Tr. 220. He needs no assistance with his personal
care, except that his mother reminds him when to take a bath. Tr. 219-20. He likes to go
fishing at least twice a month. Tr. 222. He does not prepare his own meals because he
does not “feel like it.” Tr. 244. While Plaintiff does not have a driver’s license, he
obviously is able to drive a car, as he has had “legal problems” stemming from drinking
and driving. Tr. 254. He does well following spoken instructions, and he gets along with
authority figures. Tr. 247-48. These activities and adaptive abilities are on par with the
daily activities of other claimants who have failed to show the requisite deficits in adaptive
functioning for purposes of Listing 12.05(C). See, e.g., Prunty v. Acting Comm’r of Soc.
Sec. Admin., 635 F. App’x 757, 759 (11th Cir. 2015) (finding substantial evidence
supported ALJ’s decision that claimant lacked deficits in adaptive functioning where
record established claimant’s “abilities to cook simple meals, do household chores, drive a
car by herself, take care of a dog, babysit children, and work part-time at McDonald’s”);
Rodriguez v. Comm’r of Soc. Sec., 633 F. App’x 770, 773-74 (11th Cir. 2015) (finding that
the claimant’s activities of daily living, including doing household chores, grocery
shopping, attending church, driving, and work history including jobs at the skilled and
semi-skilled level provided substantial evidence to support the ALJ’s determination that
the claimant did not satisfy the diagnostic criteria of Listing 12.05(C)); Schrader, 632 F.
App’x at 577 (finding substantial evidence supporting ALJ’s decision regarding lack of
deficits in adaptive functioning where, although claimant “attended special education
classes, she graduated high school with a regular diploma,” “was able to groom herself,
cook simple meals, perform household chores, drive, watch television, and babysit her
nephews without any assistance from others[,]” and she “worked part-time at the
laundromat”); and Hickel v. Comm’r of Soc. Sec., 239 F. App’x 980, 984 (11th Cir. 2013)
(finding substantial evidence supported ALJ’s decision that claimant lacked deficits in
adaptive functioning where evidence showed that, although claimant participated in special
education classes, “she is a high school graduate, she works part time at a nursery, she
drives herself to work, she can prepare simple meals and dress and groom herself, she
attends church regularly, and she socializes with friends”).
To be sure, there is evidence in the record of Plaintiff’s limitations with regard to
his activities of daily living. But Plaintiff fails to point to any evidence in the record tending
to show that the ALJ’s finding that Plaintiff is only mildly impaired in such activities is
erroneous. As evidence of Plaintiff’s deficits in adaptive functioning, Plaintiff points only
to the fact that he never obtained a driver’s license, “exhibited marginal vocabulary,” and—
as found by the ALJ—has no past relevant work experience. However, none of these
circumstances warrant a finding that Plaintiff suffers the requisite deficits in adaptive
functioning for purposes of Listing 12.05(C). First, as discussed above, even without a
license, Plaintiff is able to drive. Plaintiff points to no law or case holding that a deficit in
adaptive functioning may be inferred from a claimant’s failure to obtain a state-issued
license to do an activity, especially where the claimant has demonstrated the ability to
actually perform the activity unlicensed. Nor does Plaintiff point to any law or case holding
that a claimant’s narrow vocabulary is sufficient to find deficits in adaptive functioning.
Plaintiff testified extensively before the ALJ. See Tr. 42-64. Even though his answers are
often plain and his grammar is poor, it is evident that Plaintiff generally was able to
understand the questions he was asked and respond appropriately. Finally, the fact that
Plaintiff does not have past relevant work does not compel the conclusion that he has
deficits in adaptive functioning. In fact, Plaintiff testified about two previous jobs he
briefly held, and further indicated that, after leaving the second job, he stopped looking for
work. Tr. 47-48.
In sum, while there is some evidence of Plaintiff’s difficulties due to his mental
impairment, as set forth above, there is undoubtedly sufficient evidence in the record
showing that Plaintiff lacks the requisite deficits in adaptive functioning for purposes of
Listing 12.05(C). As such, the Appeals Council’s denial of review of the ALJ’s decision,
despite Plaintiff’s submission of an education record reflecting an IQ score within the range
implicated by Listing 12.05(C), was not contrary to the weight of the record and, hence,
was not erroneous.
Records conflicting with Dr. Gam’s opinion.
Plaintiff’s final contention of error with respect to the Appeals Council’s denial of
review is that the school records submitted to the Council directly conflict with Dr. Gam’s
opinion that [Plaintiff] did ‘not have a long history of mental slowness or mental
retardation.” Pl.’s Br. (Doc. 12) at 5. He argues that the school records show that his
“intellectual deficiencies arose during the developmental period.” Id.
Plaintiff saw Dr. Gam for a consultative mental examination. Tr. 285. Dr. Gam
noted that Plaintiff “completed the 9th grade in ‘special education’” classes, and further
found that Plaintiff’s “intellect appears borderline,” his “ability for “simple calculations is
marginal,” and that he struggles with abstract thought and concepts.
Nevertheless, in the “Prognosis” section of the report, Dr. Gam remarks that Plaintiff “does
not have a long history of mental slowness or mental retardation. However, due to his poor
judgment he may not be able to function independently and manage financial benefits if
granted.” Tr. 287. More importantly, Dr. Gam opined the following with regard to
Plaintiff’s mental functional capacity:
Currently, from a mental standpoint, the claimant has no impairment in his
ability to comprehend, carry out, and remember simple instructions. He has
moderate impairment in his ability to comprehend, carry out, and remember
complex instructions. He has moderate impairment in his ability to respond
appropriately to supervision, coworkers, and work pressures in a work
setting. He has no impairment in his ability to make simple work decisions.
He may have marked impairment in his ability to make complex work
decisions. He has moderate impairment in his ability to maintain
concentration and pace for more than two hours. He has moderate
impairment in his ability to change at work. He has mild impairment in his
ability to manage his activities of daily living. He has mild impairment in
his ability to function socially. His prognosis is guarded.
Tr. 288. Thus, notwithstanding Dr. Gam’s remark about Plaintiff’s perceived lack of a
“long history of mental slowness or mental retardation,” Dr. Gam plainly observed that
Plaintiff suffers some mental impairment and therefore articulated a “guarded” opinion
about Plaintiff’s mental functioning in a workplace setting. In essence, Dr. Gam opined
that Plaintiff has the ability to follow simple instructions and make simple work decisions.
The ALJ recognized that “Dr. Gam’s evaluation indicates that [Plaintiff] does have some
cognitive deficits.” Tr. 31. Ultimately, the ALJ gave “significant weight” to Dr. Gam’s
opinion, Tr. 33, and the RFC articulated by the ALJ is largely consistent with the opinion
of Plaintiff’s functional abilities given by Dr. Gam.
Plaintiff does not explain how the school records he submitted to the Appeals
Council both “directly conflict with Dr. Gam’s opinion” or, more significantly, render the
Appeals Council’s denial of review of the ALJ’s decision erroneous. That is, Plaintiff does
not explain how the records render Dr. Gam’s ultimate opinion about Plaintiff’s abilities—
the part of Dr. Gam’s opinion that is significant in the ALJ’s decision—unworthy of the
weight afforded by the ALJ. Plaintiff proffers the records as demonstrating that Plaintiff’s
intellectual deficiencies arose during the developmental period.” Pl.’s Br. (Doc. 12) at 5.
But both Dr. Gam and the ALJ acknowledged that Plaintiff has cognitive deficits, and the
ALJ found that Plaintiff has the severe impairment of borderline intellectual functioning.
There does not appear to be any dispute about whether Plaintiff’s impairment “arose during
the developmental period.” Furthermore, the records only reflect that 1) Plaintiff received
special education services, and 2) he scored a 69 on an IQ test rendered in 1992.
Importantly, Dr. Gam already noted in Plaintiff’s “Social History” that Plaintiff attended
special education classes. Tr. 286. Moreover, it is unclear why or how the IQ score noted
in the records would or should have changed Dr. Gam’s (or the ALJ’s) opinion about
Plaintiff’s abilities. There is only a handwritten note indicating the score and the date of
the test. There is no commentary that would assist any reviewer’s assessment of the
validity of the test results. To that point, Dr. Gam noted that, during his consultative
examination, Plaintiff’s “motivation is low,” as well as “finding indications of
malingering.” Tr. 287. However, even if Dr. Gam were aware of the IQ score, and
accepted it as valid, as discussed above, nothing in the mental abilities he opined of Plaintiff
is inconsistent with that score. Thus, the court simply cannot conclude that the Appeals
Council erred in denying review of the ALJ’s decision on the basis of any supposed conflict
between the school records submitted to the Council and the opinion of Dr. Gam.
The ALJ’s treatment of “inconsistencies” in the record.
Plaintiff’s final claim of error is that the ALJ “fail[ed] to resolve inconsistencies in
the administrative record with actual rationale prior to issuing his unfavorable decision.”
Pl.’s Br. (doc. 12) at 6. As examples, he mentions perceived internal inconsistencies in Dr.
Gam’s opinion, including that Dr. Gam “observed that [Plaintiff’s] memory, concentration,
and attention span appeared impaired” and that Dr. Gam opined that Plaintiff’s poor
judgment might limit his ability to “function independently and manage financial benefits
if granted.” Id. According to Plaintiff, these opinions are inconsistent with Dr. Gam’s
assessment that Plaintiff can “perform substantial gainful activity on a sustained basis.” Id.
at 7. Thus, he asserts, the ALJ should have resolved this inconsistency, especially
considering that the ALJ afforded Dr. Gam’s opinion significant weight. Furthermore,
Plaintiff argues that the ALJ should have resolved the perceived conflict between Dr.
Gam’s opinion that Plaintiff may work and his treating source’s observation that Plaintiff
has “difficulty understanding simple concepts.” Id. Plaintiff asserts that the ALJ’s failure
to reconcile these parts of the record violates “Marbury,” and therefore warrants reversal
and remand of this matter. Id.
Plaintiff’s claim of a dispositive “Marbury” error is lacking in sufficient detail or
development. Although he mentions a supposed “Marbury” error several times, the only
time any actual Marbury opinion is cited is in a block quotation of the opinion of another
judge of this court. See Def.’s Br. (Doc. 12) at 6-7 (quoting Ellington v. Astrue, No. 2:07cv-789-CSC, 2008 WL 1805435, at *9 (M.D. Ala. April 18, 2008)). In any event, the
Eleventh Circuit’s holding in that case was simply that the ALJ should have obtained a
vocational expert’s testimony about whether the claimant could perform jobs existing in
the national economy because the ALJ found that the claimant could perform less than the
full range of light work, and that the ALJ erred in evaluating the claimant’s subjective
testimony about pain where the record adequately established that the claimant’s medical
conditions could reasonably be expected to cause pain of the sort about which he
complained. Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir. 1992). Nothing in the
opinion appears directly on-point with the instant Plaintiff’s argument that the ALJ failed
to resolve purportedly internally inconsistent medical opinion with “actual rationale.”
Nevertheless, the court does not find any inconsistency in the record evidence
demanding a more exacting explication of his rationale than what was actually given by
the ALJ. Dr. Gam simply observed that, due to Plaintiff’s “poor judgment,” “he may not
be able to function independently and manage financial benefits if granted.” Tr. 287
(emphasis supplied). Thus, Plaintiff mischaracterizes Dr. Gam’s opinion when he says that
Dr. Gam opined that Plaintiff “was not able to function independently[.]” Pl.’s Br. (Doc.
12) at 7. Plaintiff finds certainty where Dr. Gam clearly equivocated. Nevertheless, as
discussed previously, Dr. Gam’s opinion about Plaintiff’s mental functional ability reflects
his “guarded” prognosis of Plaintiff’s ability to work even considering Plaintiff’s “poor
judgment.” Dr. Gam found Plaintiff moderately impaired in his ability to “comprehend,
carry out, and remember complex instructions,” moderately impaired in his ability “to
respond appropriately to supervision, coworkers, and work pressures,” and markedly
impaired in his ability to make “complex work decisions.” Tr. 288. Thus, in view of his
concerns about Plaintiff’s ability to “function independently” due to his “poor judgment,”
Dr. Gam opined that, essentially, Plaintiff should be limited to employment requiring him
only to follow simple instructions and make simple work-related decisions. Plaintiff does
not explain how this opinion is “internally inconsistent” with Dr. Gam’s related observation
that Plaintiff “may not be able to function independently.”
Finally, even to the extent that Dr. Gam’s opinion could be characterized as
“internally inconsistent,” the ALJ did articulate a rationale for his conclusion that Dr.
Gam’s concern about Plaintiff’s independent functioning did not preclude his ability to
perform substantial gainful activity. In his opinion, the ALJ noted Dr. Gam’s statement,
but further noted the functional limitations opined by Dr. Gam discussed previously and,
more significantly, the VE’s testimony that “Dr. Gam’s statement would not allow the
claimant to perform skilled or semiskilled work but would not preclude the ability to
perform unskilled work.” Tr. 33. Indeed, when queried about Dr. Gam’s statement, the
VE testified that the unskilled occupations he had described in response to the ALJ’s
hypotheticals would be acceptable for someone limited in their ability, or even unable, to
function independently. Tr. 72. Hence, in relying upon the testimony of the vocational
expert, the ALJ supported his reconciliation of any perceived internal inconsistency in Dr.
Gam’s opinion with sufficient “rationale.”
The final point of contention raised by Plaintiff is that the ALJ “fail[ed] to recognize
or provide rationale thereto regarding [Plaintiff’s] treating mental health provider’s
observation that he demonstrated ‘difficulty understanding simple concepts.’” Pl.’s Br.
(Doc. 12) at 7. This observation is set forth in a May 7, 2014, “Progress Note” authored
by a counselor at East Alabama Mental Health Center. Tr. 319-20. As argued by
Defendant, see Def.’s Br. (Doc. 13) at 12, a counselor is not an acceptable medical source
under the governing regulations and, accordingly, the ALJ was justified in crediting the
opinion of acceptable medical sources like Dr. Gam and Dr. Sims, who completed a
“Mental Residual Functional Capacity Assessment.” Both of these acceptable medical
sources opined that Plaintiff is able to understand simple instructions and make simple
decisions. See Tr. 89-91, 288. Although the ALJ did not explicitly mention the counselor’s
observation about Plaintiff’s difficulty with understanding simple concepts, the ALJ
plainly reviewed and considered the treatment note in which that observation was included.
See Tr. 30 (discussing May 7, 2014, “Progress Note”). However, with respect to the
counselor’s observation, the ALJ simply credited the opinion of acceptable medical sources
regarding Plaintiff’s ability to understand simple instructions and make simple decisions.
As set forth above, that decision is supported by substantial evidence. Accordingly, the
ALJ did not reversibly err.
For all of the reasons given above, the undersigned Magistrate Judge concludes that
the decision of the Commissioner is AFFIRMED. A separate judgment will issue.
Done this 31st day of May, 2017.
/s/ Wallace Capel, Jr.
CHIEF UNITED STATES MAGISTRATE JUDGE
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