Allen v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/30/13. (SAC )

FILED
2013 Sep-30 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JERRY RAY ALLEN,

Plaintiff,
vs.

MICHAEL ASTRUE
COMMISSIONER OF
SOCIAL SECURITY,

Defendant.

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CIVIL ACTION NO.
3:11-CV-04322-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On October 18, 2006, the claimant applied for a period of disability and disability insurance
benefits under Title II and Part A of Title XVIII of the Social Security Act. (R. 77). The
Commissioner denied these claims initially on February 6, 2007. (R. 31). On March 15, 2007, the
Commissioner determined that the claimant’s disability under Title XVI had ceased, as he no longer
met the criteria for disability under § 12.05 of the listings, and terminated the claimant’s eligibility
as of May 31, 2007. (R. 32).1 On March 20, 2007, the claimant filed a request for reconsideration
of his disability cessation. (R. 43). The Commissioner again denied the claim on June 30, 2008. (R.

1

On September 27, 1994, the Commissioner initially found the claimant disabled as of
July1, 1994 and awarded him child’s supplemental security benefits under Title XVI from that
date until his March 1, 2007 determination.
1

54). The claimant timely filed a request for a hearing before an Administrative Law Judge, and the
ALJ held the hearing on September 15, 2009. (R. 67).
In an opinion dated January 5, 2010, the ALJ found that the claimant’s disability under
§ 1614(a)(3)(A) of the Social Security Act ended on March 1, 2007, and that the claimant had not
become disabled again since that date; therefore, the ALJ found that the claimant was ineligible for
both a period of disability and disability insurance benefits, as well as supplemental income. (R. 26).
The Appeals Council subsequently denied the claimant’s request for review on October 20, 2011,
and the ALJ’s decision became the final decision of the Commissioner of the Social Security
Administration. (R. 6). As the claimant has exhausted his administrative remedies, this court has
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Because the ALJ improperly evaluated the claimant’s mental retardation and because the
Appeals Council did not adequately consider new and material evidence, this court reverses the
decision of the Commissioner and remands to the ALJ for further findings consistent with this
opinion.
II. ISSUES PRESENTED
The claimant raised several issues on appeal. Because the court finds the following issues
determinative, it does not reach the other issues.
(1)
(2)

Whether the ALJ improperly evaluated the claimant’s mental retardation under 20
C.F.R. § 404.1520a and section 12.05 of the listings.
Whether the Appeals Council inadequately considered new evidence in making its
determination not to review the ALJ’s decision.
III. STANDARD OF REVIEW

The standard for reviewing the Commissioner’s decision is limited. This court must affirm
the Commissioner’s decision if the Commissioner applied the correct legal standards and if the
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factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel,
129 F.3d 1420 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. But this court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence. “Substantial
evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
This court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner’s] factual findings.” Walker, 826 F.2d at 999. A reviewing court must look not only
to those parts of the record that support the decision of the ALJ, but also must view the record in its
entirety and take into account evidence that detracts from the evidence on which the ALJ relied.
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person
cannot “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). The
Social Security Administration may terminate benefits if the claimant’s medical condition has
improved sufficiently since the initial disability determination, such that he is no longer disabled.
See 20 C.F.R. § 404.1594(a)-(b). In a proceeding to determine whether a claimant’s disability
continues, the Commissioner must use the following multi-step sequential evaluation process:
3

(1)

(2)
(3)

(4)

(5)

(6)
(7)

Does the claimant have an impairment or combination of impairments that
meets or medically equals one of the impairments listed in 20 C.F.R. Pt. 404,
Subpt. P, App. 1? If yes the claimant’s disability continues. If no, the
evaluation proceeds to step two.
Has the claimant experienced medical improvement? If yes, the evaluation
proceeds to step three; if no, the evaluation proceeds to step four.
Is the claimant’s medical improvement related to his ability to work? If yes,
the evaluation proceeds to step five; if no, the evaluation proceeds to step
four.
Does an exception apply under 20 C.F.R. §§ 416.994(b)(3)-(4)? If no
exception applies, the claimant’s disability continues. If an exception in
(b)(3) applies, the evaluation proceeds to step five. If an exception in (b)(4)
applies, the claimant is not disabled.
Does the claimant have a medically severe impairment or combination of
impairments? If yes, the evaluation proceeds to step six; if no, the claimant
is not disabled.
Is the claimant unable to perform his former occupation? If yes, the
evaluation proceeds to step seven; if no, the claimant is not disabled.
Is the claimant unable to perform any other work within the national
economy? If yes, the claimant is disabled; if no, the claimant is no longer
disabled.

20 C.F.R. § 416.994(b)(5).
As to mental impairments, the ALJ must base his evaluation on the “special technique”
dictated by the Psychiatric Review Technique Form (PRTF). Moore v. Barnhart, 405 F.3d 1208,
1213 (11th Cir. 2005); 20 C.F.R. § 404.1520a-(a). The “special technique” requires an evaluation
of the impact of the claimant’s mental impairment on (1) activities of daily living (ADLs); (2) social
functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. Moore, 405
F.3d at 1213. Failure to either complete the PRTF and append it to the ALJ’s opinion, or to
incorporate the PRTF’s “mode of analysis” into the ALJ’s decision constitutes reversible error.
Moore, 405 F.3d at 1214.
Additionally, a finding of disability for mental retardation under the listings requires a finding
that the claimant “(1) ha[s] significantly subaverage general intellectual functioning; (2) ha[s]
4

deficits in adaptive behavior; and (3) ha[s] manifested deficits in adaptive behavior before age 22.”
Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997); see 20 C.F.R. Pt. 404, Subpt. P,
Appendix 1 § 12.05. A claimant’s mental retardation is sufficiently severe when it meets the
requirements of 12.05A, B, C, or D. Under 12.05C, a claimant must have a valid verbal,
performance, or full scale IQ ranging from 60 to 70, and an additional mental or physical impairment
imposing an additional work-related limitation on function. Under 12.05D, a claimant must have a
valid verbal, performance, or full scale IQ ranging from 60 to 70, resulting in at least two of the
following:
(1) marked restriction of activities of daily living; or
(2) marked difficulties in maintaining social functioning; or
(3) marked difficulties in maintaining concentration, persistence, or pace; or
(4) repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05D.
After an ALJ’s determination, a claimant may present new and material evidence to the
Appeals Council, and the Council must consider such evidence in determining whether to review
the ALJ’s decision. 20 C.F.R. §§ 404.967, 404.970(b); Falge, 150 F.3d at 1322-24. New evidence
is material if a reasonable possibility exists that the new evidence would change the administrative
result. Id. at 1323. When a claimant presents new evidence to the Appeals Council and it
subsequently denies review of the ALJ’s decision, the Appeals Council must show that it adequately
evaluated the new evidence, and did not “perfunctorily adhere” to the ALJ’s decision. Epps v.
Harris, 624 F.2d, 1267, 1273 (5th Cir. 1980).2 Where a reasonable possibility exists that new

2

After the Fifth Circuit split and the Eleventh Circuit was established, the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down before the close of
business on September 30, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981).
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evidence could change the administrative result, the Appeals Council must not simply acknowledge
the new evidence with no further mention or attempt to evaluate it. See Flowers v. Comm’r of Soc.
Sec., 441 Fed. Appx. 735, 745 (11th Cir. 2011).
V. FACTS
The claimant was twenty-three years old at the time of the administrative hearing, and has
an eighth grade special education. (R. 24). The claimant has past work experience as a plumber
helper. (R. 504). The claimant alleged that he was disabled by mental retardation beginning on July
5, 1994. (R. 20, 74).
Background
On September 27, 1994, the Disability Determination Service (“DDS”) found the
claimant had been disabled beginning July 1, 1994, with mental retardation as the primary
diagnosis. (R. 27). On September 8, 2001, the DDS found that the claimant’s disability
continued, with a primary diagnosis of mental retardation and secondary diagnosis of
Gastroesophageal Reflux Disease (“GERD”). (R. 29). On March 15, 2007, the DDS found that
the claimant’s disability had ceased as of March 1, 2007 and that his eligibility would terminated
on May 31, 2007. (R. 32).
Mental Limitations
On February 13, 1991, the claimant took a Wechsler Intelligence Scale For Children-Revised
Test. The claimant achieved a Verbal IQ of 80, a Performance IQ of 85, and a Full Scale IQ of 81.
(R. 115-117).3

3

Because the ALJ relied on and discussed the claimant’s IQ scores from 1991 through
2008, the court will discuss each of his IQ scores included in the record.
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Throughout the 8th grade, the claimant participated in a multi-disciplinary eligibility
determination test. On December 8, 1994, the claimant took a WISC-III intelligence test, scoring a
65 Verbal IQ, a 72 Performance IQ, and a 66 Full Scale IQ. (R. 100-103).
On July 27, 1999, the claimant visited Dr. James E. Crowder, Ph.D., on referral from the
DDS for a comprehensive psychological evaluation. Dr. Crowder administered the Wechsler Adult
Intelligence Scale-III test, and found that the claimant had a Verbal IQ of 67 (1st percentile), a
Performance IQ of 74 (4th percentile), and a Full Scale IQ of 67 (1st percentile). Dr. Crowder
concluded that the claimant was mildly mentally retarded, but that he could function in an age
appropriate manner socially, adaptively, behaviorally, and in concentration, persistence and pace.
(R. 278-280).
On October 18, 2006, the claimant applied for a period of disability and disability insurance
benefits as an adult under Title II and Part A of Title XVIII of the Social Security Act. (R. 77).4
On November 30, 2006, the claimant’s mother completed a Report of Continuing Disability
Interview. The claimant’s mother stated that the claimant suffered from mental retardation and high
blood pressure. She also stated that he could not follow directions and struggled to understand and
carry-out simple tasks. Further, the claimant’s mother stated that the claimant could not read. The
claimant’s mother noted that the claimant worked as a plumber helper from January 2004, until
February 2005, when he was fired because he could not understand his assignments. (R. 187-196).
On December 1, 2006, the claimant’s mother completed a Work Activity Report Interview.

4

Unlike the three-step sequential analysis the Commissioner used to determine if the
claimant was disabled as a child, the standard for determining whether the claimant continues in
his disability as an adult involves the multi-step sequential evaluation process discussed in the
Legal Standard section of this Memorandum Opinion.
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The claimant’s mother stated that he worked for his half-brother, but was released because he could
not carry out instructions or purchase the correct parts or tools from a store. The interviewer, Yvonne
Veal, noted that she did not consider the work to be substantial gainful activity, because the
claimant’s mother stated that he would not have been hired if his employer were not his half-brother.
(R. 197-204).
On December 20, 2006, the claimant’s mother submitted a DDS claim form. The claimant’s
mother wrote that the claimant’s wife helped care for him and his children, and that the claimant was
constantly depressed, often affecting his sleep. The claimant’s mother further wrote that the claimant
had poor short term memory and needed reminders to take his medication. She indicated that
although the claimant shopped for food and personal items approximately twice a month, he required
several hours to complete the shopping because he had to call home to be reminded what to buy. She
further wrote that the claimant could not read or write and that he struggled with basic arithmetic.
Also, she noted that the claimant was increasingly withdrawn, stayed to himself, and did not want
to participate in social activities. (R. 205-211).
On January 31, 2007, Dr. David D. Powers, a clinical psychologist, evaluated the claimant’s
mental functional capacity. The examination took place at the request of the SSA to determine the
claimant’s eligibility for Title II and Title XVIII benefits. Dr. Powers found that the claimant was
either moderately limited, or not significantly limited in all areas of the PRTF. Dr. Powers wrote that
the moderate restrictions were “real” with no severe problems of any kind. Dr. Powers concluded
that the claimant could perform simple work. (R. 305-322).
On February 6, 2007, Taminee Jones and Pamela Ellis, vocational examiners, performed a
vocational analysis on the claimant. Ms. Jones and Ms. Ellis indicated that the claimant was

8

moderately limited in the areas of understanding and memory, sustained concentration and
persistence, social interaction, and adaption. The examiners found that, although the claimant’s skills
from past relevant work would not transfer because of his mental impairment, the claimant could
adjust to other unskilled positions such as sandwich maker, dining room attendant, and baggage
porter. (R. 212-215).
Thus, on February 6, 2007, Dr. Powers and Ms. Ellis indicated that they believed the claimant
was not eligible for disability insurance benefits under Title II of the Social Security Act. Dr. Powers
and Ms. Ellis listed the claimant’s primary diagnosis as mental retardation, with a secondary
diagnosis of hypertension. (R. 30).
On March 15, 2007, Dr. Powers and Melissa Woodward, a disability examiner for DDS,
determined that the claimant was no longer disabled as of March 1, 2007. Dr. Powers and Ms.
Woodward listed the claimant’s primary diagnosis as mental retardation, with a secondary diagnosis
of essential hypertension. Dr. Powers and Ms. Woodward noted that the claimant’s benefits would
cease after May 31, 2007. (R. 32).
On March 20, 2007, the claimant’s mother filed a request for Reconsideration for Disability
Cessation. The claimant’s mother stated that the claimant had become more withdrawn and did not
want to be around people. She also noted that the claimant had hypertension. (R. 104-110).
On April 2, 2008, the claimant, his brother, and his mother attended a disability hearing in
Tupelo, Mississippi. In his hearing report, Anthony Gates, the hearing officer, noted that the claimant
had problems reading and could not handle money. Mr. Gates further noted that the claimant had
problems understanding and focusing, and problems with short term memory. Mr. Gates also wrote
that the claimant worked for his brother for a year, but was let go because he took too long to learn

9

the job. Mr. Gates further noted that the claimant had problems with comprehension and was “slow
to catch on.” Mr. Gates then took the claimant’s mother’s statement, wherein she testified that the
claimant was increasingly depressed; the claimant could not follow simple instructions; and he
became frustrated easily. The claimant’s brother then testified that the claimant could not understand
his job, and that the claimant caused the brother to lose potential jobs and money because of his poor
understanding of the position. (R. 217-228).
On June 30, 2008, Mr. Gates determined that the claimant’s disability had ceased as of March
1, 2007, and affirmed the previous cessation determination. (R. 34).
On July 8, 2008, the claimant’s mother completed a Disability Report Appeal form. The
claimant’s mother wrote that since the last disability report, the claimant suffered from an increase
in back and neck pain, that his depression had worsened, and that he experienced more frequent gout
flares. The claimant’s mother further noted that the claimant was more withdrawn. (R. 229-236).
On September 25, 2008, the claimant visited Dr. Joe Edward Morris for a psychological
evaluation. Dr. Morris stated that the claimant was “surly in many of his responses, very guarded and
extremely vague,” and that the claimant was “minimally cooperative.” Dr. Morris speculated that
the claimant was malingering. Dr. Morris stated that the claimant had a driver’s license, which he
obtained via a written test. Dr. Morris noted that the claimant seemed oriented, but became irritated
during the examination. Dr. Morris further stated that the claimant sometimes had suicidal thoughts.
He found that the claimant was disgruntled and seemed to over-dramatize his pain and felt that the
claimant exhibited a marked tendency to give up easily. He administered a WAIS-III test, on which
the claimant scored a 55 Verbal IQ, a 54 Performance IQ, and a 50 Full Scale IQ. Dr. Morris found
the results of the test invalid, however, because he found the fact that the claimant obtained a driver’s

10

license through a written test contradictory to his exhibited reading deficiency; Dr. Morris believed
the claimant exhibited malingering; and he found many of the claimant’s statements during the
evaluation inconsistent, although Dr. Morris did not elaborate as to the exact nature of these
inconsistences. (R. 323-328).
Physical Limitations
On July 9, 1998, the claimant visited the Shoals Hospital in Muscle Shoals, Alabama,
complaining of heartburn. The claimant stated that he had been taking Prilosec, but that it no longer
helped. Dr. Darin K. Bowling, a doctor of osteopathic medicine, prescribed additional Prilosec and
scheduled an upper GI series, to be performed on July 13. (R. 287).
On July 13, 1998, the claimant returned to the Hellen Keller Hospital, for an upper GI Series.
Dr. Bowling performed the test. Dr. Bowling stated that oral administration of barium demonstrated
a normal distention of the claimant’s esophagus, without significant reflux. However, the claimant’s
duodenal bulb did demonstrate a mild increase in fold pattern, but he saw no evidence of ulcerations.
Otherwise, Dr. Bowling found that this test reflected a normal GI series. (R. 267).
On January 8, 1999, the claimant reported to Hellen Keller Hospital for an
Esophagogastroduodenoscopy. Dr. Bowling found that the claimant’s GERD had not responded to
Prilosec, and scheduled the procedure. Dr. Venkat Namburu performed the surgery, and gave the
postoperative diagnosis of distal erosive esophagitis and hiatal hernia. After the procedure, Dr.
Namburu increased the claimant’s dose of Prilosec, prescribed Propulsid, and advised the claimant
to lose some weight. (R. 269-270).
On November 22, 2000, the claimant returned to the Avalon Medical Center, complaining
of worsening heartburn. The attending physician increased the claimant’s dose of Prilosec. (R. 303).

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On February 25, 2003, the claimant returned to the Avalon Medical Center, complaining of
heartburn and acid reflux. The attending physician diagnosed the claimant with reflux and a hiatal
hernia, and renewed the claimant’s prescription for Prilosec. (R. 301).
On March 24, 2003, the claimant again visited the Avalon Medical Center, complaining of
heartburn and reflux. The claimant’s blood pressure was 140/96. The attending physician diagnosed
the claimant with hypertension and GERD. The physician renewed the claimant’s Prilosec. (R. 300).
On September 23, 2003, the claimant returned to the Avalon Medical Center for a follow up
visit. The claimant complained of nose bleeds, reflux, headaches, and tingling in his hands. The
claimant’s blood pressure was 160/102. The attending physician prescribed Lotrel for the claimant’s
hypertension, and renewed the claimant’s Prilosec. (R. 299).
The next documentation of treatment in the record reflects a uric acid lab from Helen Keller
Hospital on September 13, 2005. The claimant had a high uric acid level at 9.7 mg/dL. (R. 298).
The claimant then returned to the Avalon Medical Center for a follow-up of his lab results
on September 19, 2005. The claimant complained of gout. The claimant’s blood pressure was
156/100, and the attending physician noted that the claimant was non-compliant with his
hypertension medication, because he did not regularly take his medication. The physician also
diagnosed the claimant with gout, and prescribed Decadron, Depomedrol, Avapro, and Indocin. (R.
297).
On February 5, 2008, the claimant visited Dr. Marilyn MacAnalley at the Care Plus Medical
Clinic in Sheffield, Alabama. The claimant complained of gout and back pain, and also had high
blood pressure (156/112). In addition, the claimant noted frequent and painful urination. Dr.
MacAnnaley diagnosed the claimant with hypertension, a UTI, gout, and unspecified lower back

12

pain. Dr. MacAnalley treated the claimant with medication and ordered a uric acid lab. The
claimant’s uric acid lab revealed high levels of uric acid (9.4 mg/dL). The claimant was 5 feet, 9
inches tall, and weighed 274 pounds. (R. 340, 357).
On February 12, 2008, the claimant returned to the Care Plus Clinic for a follow-up visit on
his UTI and hypertension. The claimant reported that he no longer suffered burning in urination, and
his blood pressure had lowered to 128/87. Dr. MacAnalley renewed the claimant’s blood pressure
medication. The claimant weighed 274 pounds. (R. 339).
On March 25, 2008, the claimant returned to the Care Plus Clinic for a follow-up on his high
blood pressure. The claimant reported that he had been out of his medication for one week, and his
blood pressure was 140/90. Dr. MacAnalley renewed his prescription for blood pressure medication.
The claimant weighed 274 pounds. (R. 338).
On July 8, 2008, the claimant sought treatment from the Care Plus Clinic for a knot that
appeared on his neck two days prior. Dr. MacAnalley noted chronic back pain in addition to the pain
and swelling associated with the knot, and prescribed Bactrim, Clindaymacin, and a topical steroid
for the claimant’s knot. The claimant weighed 265 pounds, and his blood pressure was 138/90. (R.
336).
On August 20, 2008, the claimant returned to the Care Plus Clinic seeking a refill of his
blood pressure medication. The claimant’s blood pressure was 150/100. Dr. MacAnalley diagnosed
the claimant with hypertension, lower back pain, and thoracic back pain, and ordered an X-Ray of
the claimant’s thoracic and lumbar spine. The X-Ray revealed that the claimant had mild anterior
wedging of the T10 and T11 vertebra, but no remarkable lumbar spine issues. The claimant weighed
269 pounds. (R. 335, 349).

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On September 14, 2008, the claimant sought treatment from the Care Plus Clinic for gout
pain in his right foot. Dr. MacAnalley diagnosed the claimant with gout and hypertension, and
prescribed Indocin. The claimant weighed 264 pounds and his blood pressure was 120/94. (R. 334).
The claimant returned to the Care Plus Clinic on October 31, 2008, seeking treatment for
back and neck pain. Dr. MacAnalley then ordered an X-Ray of the claimant’s cervical spine. The
X-Ray revealed no remarkable problems. The Technologist, Gwendolyn Harbin, stated that the
claimant needed an MRI. The claimant weighed 268 pounds and his blood pressure was 120/88 (R.
333, 344).
On January 21, 2009, the claimant sought treatment from the Care Plus Clinic, complaining
of shortness of breach, chest pain, chills, sore throat, and heartburn. The claimant also ran out of his
blood pressure medication, and had a blood pressure of 140/115. Dr. MacAnalley sent the claimant
to the emergency room5 because of the chest pain, shortness of breath, and hypertension. The
claimant weighed 272 pounds and his blood pressure was 140/115. (R. 331).
The claimant returned to the Care Plus Clinic for a follow-up visit on March 30, 2009. Dr.
MacAnalley noted that the claimant ran out of blood pressure medicine, and that the claimant’s blood
pressure was 136/92. Dr. MacAnalley diagnosed the claimant with GERD, chronic neck and back
pain, anxiety, and hypertension. She prescribed the claimant Zantac, stopped the claimant’s Zoloft
prescription, and prescribed Celexa to treat the claimant’s anxiety. The claimant weighed 272 pounds
and his blood pressure was 136/92. (R. 330).
On April 14, 2009, Dr. MacAnalley discontinued the claimant’s Celexa for anxiety, and
replaced it with Lexapro, an anti-depressant. The record does not contain a notation of an office

5

No record of this emergency room visit exists in the record.
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visited associated with this prescription change. (R. 475).
The claimant again visited the Care Plus Clinic on June 2, 2009, for a follow up visit for
GERD. Dr. MacAnalley diagnosed the claimant with GERD, and chronic neck and back pain, and
stated that the claimant needed Medicaid approval for an MRI. The claimant weighed 235 pounds
and his blood pressure was 130/84. (R. 384).
The claimant had a follow-up visit with the Care Plus Clinic on July 22, 2009, where Dr.
MacAnalley stated that the claimant needed blood work and a prescription refill for blood pressure
medicine. Dr. MacAnalley diagnosed the claimant with hypertension, anxiety, and chronic back and
neck pain. Dr. MacAnalley also scheduled an MRI for the claimant on July 31, 2008. The claimant
weighed 240 pounds and his blood pressure was 136/72. (R. 383).
On July 31, 2008, the claimant had an MRI on his cervical and lumbar spine. Technologist
Melissa Bergmann performed the MRI, which revealed disc protrusion into the left lateral recess and
neural foraminal region, with some associated end plate spurring identified at the C6-7 disc
interspace level. The MRI also revealed degenerative desication of the L4-5 and L5-S1 discs. The
MRI revealed an otherwise normal lumbar spine, with no significant nerve root compression at L5.
(R. 359).
Dr. MacAnalley also referred the claimant to Dr. Gregory Adderholt, a neurosurgeon, whom
the claimant initially visited on August 31, 2009. Dr. Adderholt found the claimant’s physical
examination largely normal, noting motor skills of 5/5, reflexes of 2+ and equal, and normal
sensation, gait, and station. Dr. Adderholt did note, however, that the claimant exhibited a positive
Phalen’s sign on the right. Dr. Adderholt concluded that the claimant’s back and neck pain were
likely degenerative in origin, and that the claimant also probably had carpal tunnel syndrome.

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Additionally, Dr. Adderholt scheduled a Nerve Conduction Velocity (NCV) in both of the claimant’s
upper extremities, and recommended anti-inflammatories, weight loss, and exercise for the
claimant’s back pain. (R. 364- 365).
On September 2, 2009, the claimant returned to Dr. Adderholt for a follow-up visit after his
NCV. Dr. Adderholt stated that the claimant had paresthesias and numbness in his hands, and that
the NCV revealed bilateral carpal tunnel syndrome. Dr. Adderholt stated that he would treat the
claimant with splinting and anti-inflammatories, and if unsuccessful after two weeks, carpal tunnel
release. (R. 363).
On September 16, 2009, the claimant returned to Dr. Adderholt for a follow-up visit on his
carpal tunnel syndrome. Dr. Adderholt stated that the claimant experienced worsening symptoms of
paresthesias and numbness, despite Dr. Adderholt’s conservative measures. Dr. Adderholt offered
the claimant a left carpal tunnel release (as Dr. Adderholt noted the left was the more symptomatic
side). Dr. Adderholt stated that the claimant understood the risks and benefits of such a procedure
including worsening weakness, numbness, pain, and neuroma formation, and desired to proceed with
surgery. Dr. Adderholt noted that he would arrange the surgery and see the claimant for a follow-up
after the procedure. (R. 362).
On September 18, 2009, the claimant returned to Dr. MacAnalley at the Care Plus Clinic for
a checkup and prescription refill. Dr. MacAnalley diagnosed the claimant with chronic neck and
back pain, hypertension, and anxiety, and renewed the claimant’s prescriptions. The claimant
weighed 240 pounds and his blood pressure was 122/86. (R. 469).
On September 23, 2009, the claimant visited Dr. MacAnalley for a follow-up, also seeking
treatment for ear aches, body aches, and fever. Dr. MacAnalley diagnosed the claimant with the flu,

16

and also noted the claimant’s anxiety. The claimant did not present with hypertension, however, as
his blood pressure was 120/72. The claimant weighed 240 pounds. (R. 382).
On October 15, 2009, the claimant reported to Dr. Adderholt for a preoperative physical
examination and for surgery. Dr Adderholt stated that the claimant experienced paresthesias and
numbness in both hands (worse in the left), that tended to wake him during the night. Dr. Adderholt
further noted that the claimant’s symptoms had not improved with the usual conservative measures.
Dr. Adderholt stated that the claimant had notable medical history of hypertension, and that the
claimant smoked a pack of cigarets per day. Dr. Adderholt then performed a left carpal tunnel
release. Dr. Adderholt noted no complications during the procedure. (R. 445-448).
The claimant returned to Dr. Adderholt for a follow-up on October 28, 2009. Dr. Adderholt
stated that the claimant was “doing exceptionally well” and that he had complete resolution of the
paresthesias, but still experienced some residual pain in his ring finger. Dr. Adderholt advised the
claimant to resume his normal activities in two weeks, after the wound had fully healed. Dr.
Adderholt also noted that the claimant’s right carpal tunnel had not improved with conservative
treatment, and that the claimant desired to have surgery on the right as well. (R. 436).
On November 12, 2009, the claimant reported to Dr. Adderholt for surgery on the right hand.
Dr. Adderholt reported the same history as the previous procedure, noting that the claimant achieved
good results with his left carpal tunnel release. Dr. Adderholt then performed a right carpal tunnel
release, noting no complications and stating that the claimant was stable after surgery. (R. 441-444).
The claimant returned for a follow-up visit on November 23, 2009. Dr. Adderholt stated that
the claimant presented with no carpal tunnel-related complaints, but that the claimant had low back,
hip, and leg pain. Dr. Adderholt noted that the claimant had degenerative disc disease, and that he

17

had treated the claimant conservatively in the past. Dr. Adderholt prescribed Cataflam, and
administered a shot of DepoMedrol. (R. 435).
On December 29, 2009, the claimant visited Dr. MacAnalley at the Care Plus Clinic for a
checkup. The claimant presented with high blood pressure (128/106), and Dr. MacAnalley noted that
the claimant had run out of his medication. Dr. MacAnalley diagnosed the claimant with
hypertension, hyperlipidemia, and back pain/arthritis. Dr. MacAnalley renewed the claimant’s
prescriptions. The claimant weighed 270 pounds. (R. 468).
On January 19, 2010, the claimant visited a new doctor, Dr. Brad Ginevan, in Tuscumbia,
Alabama. Dr. Ginevan stated that the claimant had histories of chronic anxiety, depression, GERD,
gout, and hypertension that the claimant well-controlled, and chronic hyperlipidemia that the
claimant had not well-controlled. Dr. Ginevan stated that the claimant complained of moderate back
pain, localized to the bilateral lower lumbar spine, and that the claimant had suffered from the
symptoms for several years. The claimant stated that his back medication was not controlling his
pain. The claimant also stated that he experienced moderate joint pain, localized in the feet
bilaterally, and lasting for several years. The claimant indicated that he was unsuccessfully treating
the condition with gout medication and that he wanted preventative medication. The claimant also
complained of anxiety and depression, but stated that he was forced to medicate with samples from
past doctors, as his insurance did not cover his prescription for depression. Dr. Ginevan stated that
the claimant needed an anti-depressant that Medicaid would cover. The claimant weighed 272
pounds. Dr. Ginevan diagnosed the claimant with gouty arthropathy, hypertension, atypical
depressive disorder, and esophageal reflux. Dr. Ginevan renewed the claimant’s prescriptions. (R.
452-455).

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On February 2, 2010, the claimant returned to Dr. Ginevan for a follow-up visit. The claimant
reported high blood pressure (137/86), acid reflux, back and joint pain, anxiety, and depression. The
claimant stated that he stopped taking his anti-depressant because it caused blurred vision and
nausea. The claimant weighed 272 pounds. Dr. Ginevan diagnosed the claimant with gouty
arthropathy, hypertension, atypical depressive disorder, and esophageal reflux. Dr. Ginevan adjusted
the claimant’s anti-depressant prescription and renewed the claimant’s other prescriptions. (R. 457460).
The claimant visited Dr. Ginevan again on February 16, 2010, for a follow-up visit. The
claimant presented with high blood pressure (132/84), acid reflux, back and joint pain, anxiety, and
depression. The claimant weighed 269 pounds. The claimant stated that his depression had improved
somewhat since his last visit. Dr. Ginevan diagnosed the claimant with esophageal reflux,
hypertension, atypical depressive disorder, and gouty arthropathy. Dr. Ginevan increased the
claimant’s pain medication, stating that the claimant needed an appointment for pain control. (R.
461-464).
On April 27, 2010, the claimant underwent an X-Ray of his lumbar spine at the direction of
Dr. Adderholt. The X-Ray indicated mild narrowing of the disc interspace at the L5-S1 level, but an
otherwise normal lumber spine. (R. 440).
On April 29, 2010, the claimant visited Dr. Adderholt for a follow-up after the claimant’s XRay. Dr. Adderholt stated that while the X-Ray revealed no nerve root compression, the claimant
may have experienced pain resulting from ulnar nerve compression at the elbow. Dr. Adderholt
scheduled a diagnostic nerve test. (R. 434).

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The ALJ Hearing
On March 15, 2007, the Commissioner determined that the claimant’s disability under Title
XVI had ceased and terminated the claimant’s eligibility as of May 31, 2007. (R. 32). On March 20,
2007, the claimant filed a request for reconsideration of his disability cessation. (R. 43). The
Commissioner again denied the claim on June 30, 2008. (R. 54). The claimant timely filed a request
for a hearing before an Administrative Law Judge, and the ALJ held the hearing on September 15,
2009. (R. 67). The claimant, the claimant’s mother, and Thomas Elliot, a vocational expert, attended
the hearing.
The ALJ first noted that the claimant was not represented by counsel at the hearing and
clarified that the claimant had waived his right to representation on the record. Next, the ALJ
discussed the claimant’s pending carpal tunnel surgery with the claimant’s mother. The claimant’s
mother stated that the surgery would be scheduled the following day. (R. 486-490).
The ALJ then questioned the claimant about his carpal tunnel. The claimant stated that he
experienced pain and tingling, worse at night, that occasionally woke him from sleep. The claimant
also stated that the carpal tunnel was in both hands, but presently worse in the right hand. The
claimant stated that he had experienced the carpal tunnel pains for approximately three months and
that he had problems grasping things. The claimant further testified that sometimes he dropped
things because of the pain in his hands. (R. 490-491).
The ALJ then asked the claimant about other physical problems. The claimant stated that he
had gout in both feet, and that he purchased a walking stick from a pharmacy to aid him in
ambulating during episodes of gout, approximately twice a month. The claimant also stated that he
took gout medication as prescribed by Dr. MacAnalley. (R. 492-493).

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The claimant next described his back problems. The claimant stated that his back hurt
constantly. The ALJ, referring to the claimant’s MRI, characterized the claimant’s back pain as
degenerative disc disease. The claimant’s mother then testified that Dr. Adderholt informed her that
no surgery was possible for the claimant’s back pain and that he simply had to live with the pain and
treat it symptomatically. (R. 493-494).
The claimant’s mother then explained to the ALJ that the claimant was taking antidepressants and that he recently locked himself in his trailer and refused to talk to anyone. The
claimant’s mother also stated that the claimant had suicidal thoughts and sometimes talked about
killing himself. The ALJ asked the claimant how long he had been married, but the claimant did not
know. The claimant stated that he had three children, and that his wife was unemployed. The
claimant then testified that he had a driver’s license, but that he seldom drove. The claimant clarified
that the driver’s license examiner read the test to him aloud. The claimant also noted that he mostly
watched television during the day, and that he could not read. (R. 494-499).
The ALJ then questioned the claimant about his employment. The claimant stated that he was
unemployed and never seriously attempted to find work. The claimant’s mother clarified that he
previously worked for his brother, but was fired because he caused the company to lose money, and
that he struggled in understanding and retaining instructions. The claimant’s mother also testified
that the claimant’s wife was limited in her ability to work, because she had a newborn baby and
could not leave the child with the claimant because of his depression. (R. 500-503).
The ALJ then examined the vocational expert, Thomas Elliott. Mr. Elliott classified the
claimant’s previous work as plumber helper, a construction-based job that was heavy-exertional
level, semi-skilled work. The ALJ asked Mr. Elliott if a hypothetical individual who could only

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perform unskilled work, without other restrictions, would face significant limitations on the
individual’s ability to work. Mr. Elliott testified that thousands of unskilled jobs were available in
the national economy. Mr. Elliott then gave examples of machine packer, hardware assembler, and
production machine tender—all medium-exertion, unskilled work. Mr. Elliott stated that
approximately 4,000 or greater of each job existed in the regional economy, and that greater than
500,000 jobs each existed in the national economy. (R. 504-507).
The ALJ next asked Mr. Elliott if the same hypothetical individual were restricted to only
occasional interaction with supervisors, co-workers, and the general public, would there be
significant restrictions on the availability of those jobs. Mr. Elliott testified that such a restriction
would not seriously limit the jobs he previously discussed. (R. 507).
Then, the ALJ asked Mr. Elliott about the effects of carpal tunnel syndrome on unskilled
jobs. The ALJ asked if the same hypothetical individual were restricted to only occasional use of his
hands, could he sustain gainful employment in the national economy. Mr. Elliott testified that such
a restriction precluded gainful employment. The ALJ then asked the same question about an
individual limited to only frequent use of his hands, and Mr. Elliott stated that such a restriction
would allow the hypothetical individual to find light or sedentary work. (R. 508).
The ALJ next asked Mr. Elliott if the same hypothetical individual had back pain that limited
him to only light work, could the individual find gainful employment in the national economy. Mr.
Elliott described the jobs of assembler of small parts, sub-assembler of electronic components, and
nut and bolt assembler as illustrative unskilled, light jobs. Mr. Elliott testified that approximately
2,500 of each of these jobs existed in the regional economy, and greater than 200,000 each existed
in the national economy. When the ALJ asked if such an individual could perform these jobs when

22

limited to only occasional use of his hands, Mr. Elliott stated that such an individual could not
sustain gainful employment with those restrictions. (R. 509-510).
The ALJ finally asked Mr. Elliott about a hypothetical individual who had mental problems
that affected his ability to persist and concentrate for longer than two hours. Mr. Elliott stated that
“an inability to sustain persistence, concentration, or pace for up to two hours . . . would preclude
the ability to sustain these examples or any other example of unskilled work.” (R. 510).
The ALJ Decision
The ALJ rendered his decision on January 5, 2010, finding the claimant was not disabled
under § 1614(a)(3)(A) of the Social Security Act, and that his disability had ended on March 1, 2007.
The ALJ began his decision by describing the multi-step evaluation process of determining whether
a person’s disability continues. The ALJ proceeded to his findings of fact and conclusions of law.
First, the ALJ noted that the claimant’s most recent favorable medical decision finding that the
claimant continued to be disabled, or the “comparison point decision” (CPD), was on September 8,
2001. (R. 18-19).
Next, the ALJ found that at the time of the CPD, the claimant had the medically determinable
impairments of mental retardation and GERD. The ALJ found that these impairments met § 12.05C
of the listings. Then, the ALJ found that as of March 1, 2007, the claimant had the medically
determinable impairment of mental retardation, and no other impairment or combination of
impairments that met or medically equaled the listings. (R. 19-20).
Discussing the claimant’s alleged impairments, the ALJ began with the claimant’s mental
retardation. The ALJ first recounted the claimant’s various intelligence tests on the record. The ALJ
noted the following tests: a 1994 test that indicated a verbal IQ of 65, a performance IQ of 72, and

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a full scale IQ of 66; a July 27, 1999 test, that revealed a verbal IQ of 67, a performance IQ of 74,
and a full scale IQ of 67; and the test given by Dr. Morris on September 25, 2008, that showed a
verbal IQ of 55, a performance IQ of 54, and a full scale IQ of 50. The ALJ noted that the scores
were invalid because Dr. Morris felt that the claimant was intentionally evasive, vague, and
malingering. The ALJ also made note of Dr. Morris’s contention that the claimant exhibited
“histrionic flare” and seemed to “over-dramatize his pain.” Further, the ALJ found the claimant’s
statement at the hearing that a driver’s license examiner read the written test to him inconsistent with
Dr. Morris’s statement that the claimant took the written test. (R. 20, 22).
The ALJ also discussed a 1991 intelligence test that revealed a verbal IQ of 80, a
performance IQ of 85, and a full scale IQ of 81. The ALJ stated that this score, coupled with Dr.
Morris’s findings, indicated that the claimant was capable of receiving simple instructions,
performing routine repetitive tasks, responding to supervision, and interacting cooperatively with
others. The ALJ further found that the claimant’s employment as a plumber helper, an activity the
ALJ considered both substantial and gainful, coupled with the results of the 1991 intelligence test
and Dr. Morris’s findings, indicated that the claimant possessed higher intellectual abilities. The ALJ
then stated, however, that he would give the claimant the benefit of the doubt, and adopted Dr.
Crowder’s findings that the claimant possessed an IQ between 60 and 70. (R. 21).
Then, the ALJ found that the claimant did not have other physical or mental impairments that
imposed additional and significant work related limitations necessary to establish disability under
section 12.05C of the listings. The ALJ listed the claimant’s carpal tunnel, gout, back pain,
depression, and obesity, before discussing each in turn. (R. 21).
First, the ALJ discussed the claimant’s carpal tunnel. The ALJ acknowledged that Dr.

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Adderholt diagnosed the claimant with bilateral carpel tunnel syndrome in September 2009.
However, because the ALJ received no evidence of treatment after September 16, 2009, the ALJ
found that no evidence existed in the record to indicate that the claimant’s carpel tunnel would
impose any limitations for a period of twelve continuous months from onset. (R. 22).
Next, the ALJ discussed the claimant’s back pain. The ALJ first noted that the claimant’s
initial complaint of lower back pain came in February 2008, after the claimant’s disability cessation
but before the reconsideration determination. Then, the ALJ noted that, although the claimant’s MRI
indicated some disc dessication, Dr. Adderholt’s examination revealed fairly normal strength, range
of motion, reflexes, gait, and station. The ALJ found this assessment in accord with Dr. Morris’s
findings concerning malingering. The ALJ also noted that Dr. Adderholt gave the claimant back
exercises and advised him to lose weight. Finally, the ALJ stated that the record did “not show that
the claimant has had persistent back pain over a 12 month period despite treatment.” Thus, the ALJ
found that the claimant’s back pain was not a “severe” impairment. Id.
Then, the ALJ discussed the claimant’s gout. The ALJ found that the claimant only sought
treatment for gout in February, September and October 2008, which was inconsistent with the
claimant’s complaints of gout flares 1-2 times per month at the hearing. Further, although the record
indicated that the claimant was obese, the ALJ did not elaborate on the claimant’s obesity, because
“the claimant did not testify that he has any problems or limitations related to his obesity.”
Similarly, the ALJ stated that the record did not reflect any treatment or complaints of depression;
thus, depression was not a medically determinable impairment. (R. 23).
After discussing the claimant’s alleged impairments, the ALJ proceeded to determine whether
the claimant had medically improved as of March 1, 2007. The ALJ found that because the claimant

25

met the requirements of § 12.05C at the time of his CPD, but no longer met the criteria of the
listings, the claimant had medically improved as of March 1, 2007. The ALJ further found that the
claimant’s improvement was related to his ability to work. Id.
The ALJ then sought to determine the claimant’s Residual Functional Capacity (RFC),
finding that the claimant had the severe impairment of mental retardation, limiting the claimant to
unskilled work. The ALJ stated that the claimant had the RFC to perform unskilled work at all
exertional levels. The ALJ noted that the claimant had “no physical impairments which restrict his
ability to perform the exertional requirements of work.” The ALJ stated that he did not find the
claimant’s testimony credible “in view of the paucity of medical treatment and essentially normal
findings on examination as well as the obvious malingering and attempts at secondary gain noted
by Dr. Morris.” (R. 23-24).
Because the claimant’s past work as a plumber helper was semi-skilled work, the ALJ found
that the claimant could not perform his past relevant work. The ALJ further found that the claimant
had a limited education and could communicate in English. The ALJ also noted that the
transferability of the claimant’s job skills was not material to the determination of disability, as the
Medical-Vocational Rules supported a finding that the claimant was not disabled. Finally, the ALJ
determined that based on the claimant’s RFC, the claimant could perform the jobs of machine
packager, hardware assembler, production machine tender, sub-assembler of electronic parts, and
nut and bolt assembler, all of which existed in significant numbers in the national economy. (R. 2425).
Therefore, the ALJ found that the claimant’s disability ended on March 1, 2007, and the
claimant had not become disabled again since that date. (R. 25). The ALJ evaluated all the evidence

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in the administrative record up to September 23, 2009.
The claimant submitted evidence dated from October 15, 2009, to the Appeals Council, and
the Appeals Council considered the evidence in its determination not to review the ALJ’s decision.
VI. DISCUSSION
1. Evaluation of the Claimant’s Mental Impairment
The court considers whether the ALJ properly evaluated the claimant’s mental impairment
under 20 C.F.R. § 404.1520a, and § 12.05 of the listings. The court finds that the ALJ erred in his
evaluation of the claimant’s mental impairment.
The ALJ must base his evaluation of mental impairments on the “special technique” dictated
by the PRTF. Moore, 405 F.3d at 1213; 20 C.F.R. § 404.1520a-(a). The “special technique” requires
an evaluation of the impact of the claimant’s mental impairment on (1) activities of daily living
(ADLs); (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of
decompensation. Moore, 405 F.3d at 1213. Failure to either complete the PRTF and append it to the
ALJ’s opinion, or to incorporate the PRTF’s “mode of analysis” into the ALJ’s determination
constitutes reversible error. Id. at 1214.
Additionally, a finding of disability for mental retardation under the listings requires a finding
that the claimant must “(1) have significantly subaverage general intellectual functioning; (2) have
deficits in adaptive behavior; and (3) have manifested deficits in adaptive behavior before age 22.”
Crayton, 120 F.3d at 1219; see 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 § 12.05. A claimant’s
mental retardation is sufficiently severe when it meets the requirements of § 12.05A, B, C, or D.
Under § 12.05C, a claimant must have a valid verbal, performance, or full scale IQ ranging from 60
to 70, and an additional mental or physical impairment imposing a work-related limitation on

27

function. Under § 12.05D, a claimant must have a valid verbal, performance, or full scale IQ ranging
from 60 to 70, resulting in at least two of the following:
(1) marked restriction of activities of daily living; or
(2) marked difficulties in maintaining social functioning; or
(3) marked difficulties in maintaining concentration, persistence, or pace; or
(4) repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05D.
In this case, the ALJ made no mention of the PRTF, or any “special technique” required in
the evaluation of mental impairments. Further, the ALJ did not attach a PRTF to his opinion, nor did
his mode of analysis reflect that of the PRTF. The ALJ noted the claimant’s history of intelligence
tests, including a 1994 test resulting in scores of 65, 72, and 66; and a 1999 test resulting in scores
of 67, 74, and 67. The ALJ then described in detail the test administered by Dr. Morris in 2008 that
revealed scores of 55, 54, and 50, noting Dr. Morris’s finding in 2008 that the results were invalid
because of the claimant’s perceived malingering.
The ALJ then noted a 1991 test administered at the claimant’s school that revealed scores
of 80, 85, and 81, stating that those scores supported Dr. Morris’s finding that the claimant “is
capable of performing unskilled work” and “can handle simple instructions, perform routine
repetitive tasks, respond to supervision, and interact cooperatively with others.” The ALJ further
stated that the claimant’s work as a plumber helper represented substantial gainful activity, even
though the claimant’s mother testified that the claimant only was hired because his brother ran the
business, and Yvonne Veal, a DDS worker, found in 2006 that the claimant’s work was not
substantial gainful activity.
The ALJ made no determination about the claimant’s ability to perform ADLs; his social
functioning; his concentration, persistence, and pace; or any periods of decompensation. Thus, the
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ALJ committed reversible error because he neither attached a PRTF to the opinion, nor followed its
mode of analysis in his evaluation of the claimant’s mental retardation.
Further, the ALJ improperly confined his analysis to § 12.05C of the listings. Section 12.05
states that the claimant’s impairment is severe if it meets the requirements of § 12.05A, B, C, or D.
Section 12.05D allows for a finding of disability if the claimant has an IQ between 60 and 70, and
has marked restrictions with two of the four areas outlined in the PRTF. The ALJ made no findings
associated with § 12.05D.
Therefore, the court finds that the ALJ committed reversible error in neither attaching the
PRTF to his opinion, nor incorporating its mode of analysis in his evaluation of the claimant’s
mental retardation. The ALJ also erred in his failure to evaluate the claimant’s mental retardation
under § 12.05D.
2. Appeals Council Consideration of New Evidence
Finally, the court considers whether the Appeals Council properly considered the new
evidence the claimant submitted after the ALJ’s decision. The court finds that the ALJ did not
adequately consider new and material evidence in making its determination not to review the ALJ’s
decision.
A claimant may present new and material evidence to the Appeals Council, and the Council
must consider such evidence in determining whether to review the ALJ’s decision. 20 C.F.R. §§
404.967, 404.970(b); Falge, 150 F.3d at 1322-24. New evidence is material if a reasonable
possibility exists that the new evidence would change the administrative result. Id. at 1323. When
a claimant presents new evidence to the Appeals Council and the Appeals Council subsequently
denies review of the ALJ’s decision, the Appeals Council must show that it adequately evaluated the

29

new evidence, and did not only “perfunctorily adhere” to the ALJ’s decision. Epps, 624 F.2d at 1273.
Where a reasonable possibility exists that the new evidence could change the administrative result,
the Appeals Council must not simply acknowledge the new evidence with no further mention or
attempt to evaluate it. See Flowers, 441 Fed. Appx. at 745.
After the ALJ found the claimant not disabled on January 5, 2010, the claimant filed a request
for review of the ALJ’s decision with the Appeals Council, and submitted five new exhibits. The
evidence included treatment records from Dr. Adderholt from October 28, 2009, through April 29,
2010; Dr. MacAnalley from February 5, 2008, through December 29, 2009; and Dr. Ginevan from
January 19, 2010, through March 15, 2010. The new evidence included treatment for carpal tunnel,
back and neck pain, and depression.
Considering that the ALJ based his decision that the claimant had no other severe
impairments than mental retardation primarily on the paucity of evidence of treatment of other
impairments, such evidence creates a reasonable possibility of a different administrative result.
Although the Appeals Council stated that it considered the evidence, it simply issued a form denial.
It merely acknowledged the evidence, giving no further explanation as to why it did not believe that
the new evidence was material. The Appeals Council did not list specific, adequate reasons why it
believed the new evidence from the claimant’s treating physicians could not possibly change the
administrative result.
Therefore, because this court finds that the new evidence submitted to the Appeals Council
created a reasonable possibility of a different administrative result, the Appeals Council did not
adequately consider the new and material evidence, and erred in not remanding the case to the ALJ.
Additional Concerns

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The court also has concerns about whether the ALJ improperly considered the claimant’s
obesity in combination with his other impairments and whether he properly applied the Eleventh
Circuit’s pain standard in evaluating the claimant’s subjection claims regarding his limitations. The
court instructs the ALJ to adequately address both of the court’s concerns on remand.
VII. CONCLUSION
For the reasons stated, this court finds that the Commissioner did not employ the correct legal
standards in making his determination. Accordingly, substantial evidence does not support his
decision. Therefore, the court will REVERSE and REMAND the decision of the Commissioner to
the ALJ for further action consistent with this opinion. The court simultaneously will enter a separate
Order to that effect.
DONE and ORDERED this 30th day of September, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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