Cates v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 1/5/2016. (PSM)

FILED
2016 Jan-05 PM 02:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CHARLES CATES,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO:
4:14-CV-01866-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Charles Cates, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying his application
for Supplemental Security Income (“SSI”) and Disability Insurance Benefits
(“DIB”) under Titles II and XVI of the Social Security Act. Mr. Cates timely
pursued and exhausted his administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Mr. Cates was forty-three years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a high school education. (Tr. at 33, 35 127,
217.) His past work experiences include employment as a construction laborer, a
sanitation worker, and a fast food worker. (Tr. at 36-37.) Plaintiff also reported that
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he hung sheetrock for twenty years for cash while working for his father. (Tr. at
192, 271, 279.) Mr. Cates claims that he became disabled on January 1, 1995, due to
bipolar disorder, mental retardation, asthma, and drug and alcohol abuse. (Tr. at
10, 13, 39, 102, 123, 205, 217.)
The Social Security Act authorizes payment of DIB and SSI to persons with
disabilities. See 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1); 20 C.F.R. §§ 404.315(a)(3),
416.202(a)(3) (2015). The Social Security Administration has established a fivestep sequential evaluation process for determining whether an individual is disabled
and thus eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow
the steps in order until making a finding of either disabled or not disabled; if no
finding is made, the analysis will proceed to the next step. See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The first step requires the evaluator to determine
whether the plaintiff is engaged in substantial gainful activity (“SGA”). See id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of

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impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant

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work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Mr. Cates
meets the insured status requirements of the Social Security Act through
September 30, 1998, meaning that he had to establish disability on or before that
date. (Tr. at 12.) He further determined that Mr. Cates has not engaged in SGA
since the alleged onset of his disability. (Id.) According to the ALJ, Plaintiff’s
diagnosis of bipolar disorder is considered “severe” based on the requirements set
forth in the regulations. (Id.) However, he found that Mr. Cates’s impairments
neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. at 13.) The ALJ determined that that Mr. Cates

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has the following RFC: to perform a full range of work at all exertional levels, but
with the nonexertional limitations that he should have no contact with the general
public and only occasional contact with co-workers. Additionally, he should
perform work that has no production quotas and simple, non-complex job tasks that
require no more than normal work place judgment. (Tr. at 14-15.)
According to the ALJ, Mr. Cates is able to perform his past relevant work as
a sanitation cleaner as it is actually performed. (Tr. at 22.) The ALJ further
determined that based on Plaintiff’s RFC, age, education, and work experience,
there are also a significant number of other jobs in the national and state economy
that he is capable of performing, such as dishwasher, hand packager, and
equipment cleaner. (Tr. at 23.) The ALJ concluded his findings by stating that
Plaintiff “was not under a disability, as defined in the Social Security Act from
January 1, 1995, through the date of the decision.” (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.

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Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“The substantial evidence standard permits administrative decision

makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.

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Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Mr. Cates alleges that the ALJ’s decision should be reversed and remanded

for two reasons. First, Plaintiff believes that the ALJ erred in giving little weight to
the opinion of a consultative examiner, Dr. David Wilson. Second, Plaintiff
contends that the ALJ should have ordered additional IQ tests to determine
whether Plaintiff is mentally retarded.
A.

Weight to One-Time Consultative Examiner’s Opinion

Consultative opinions from non-treating physicians, such as the one from
Dr. Wilson, are not entitled to the same controlling weight that treating physicians’
opinions are entitled to receive. See 20 C.F.R. §§ 40.1527(c)(2), 416.927(c)(2).
Instead, the ALJ weighs all non-controlling medical opinions under various factors,
including the length and frequency of the examining and treating relationship the
medical source had with the claimant, the evidence the medical source presents to
support the opinion, how consistent the opinion is with the record as a whole, and
the specialty of the medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Additionally, the ALJ may reject the opinion of any physician if the evidence

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supports a different conclusion than the one reached by the physician. Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985).
Dr. Wilson examined Mr. Cates in February 2013 at the request of his
attorney. (Tr. at 230.) Dr. Wilson diagnosed Bipolar Disorder (mixed), ankle
problems, history of alcohol dependence, possible dementia, personality disorder
NOS with paranoid features, asthma, and mental retardation. (Tr. at 228.) The
diagnosis of mental retardation was reached upon the administration of the WAISIV, in which Mr. Cates scored a 59, and the Wechsler Individual Achievement Test
(WIAT), in which Mr. Cates scored a 72. (Tr. at 227.) Dr. Wilson reported that
these scores placed Mr. Cates in the mildly retarded range with significant deficits
in all areas. (Tr. at 227-28.) Based upon the mental retardation and bipolar
diagnoses, Dr. Wilson concluded that Mr. Cates faced extreme limitations in
virtually every area, which made it highly unlikely that he could maintain any type
of job. (Tr. at 228.)
As noted by the ALJ (tr. at 20), if adopted, Dr. Wilson’s findings would
indicate disabling limitations because Plaintiff may have met Listing 12.05
regarding mental retardation. 1 A claimant may meet Listing 12.05(B) by showing a
Effective September 3, 2013, the Social Security Administration amended Listing 12.05
by replacing the words “mental retardation” with “intellectual disability.” See 78 Fed. Reg.
46,499, 46,501. This change was made because the term mental retardation had negative
connotations, and had become offensive to many people. Id. at 46,499. However, the
1

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“valid verbal, performance, or full scale IQ of 59 or less” and deficits in adaptive
functioning initially manifested before the age of 22. See 20 C.F.R. pt. 404, subpt.
P, app. 1, § 12.00(A), § 12.05(B). Thus, if the ALJ were to have adopted Dr.
Wilson’s opinion, Plaintiff may have been found disabled at step three of the
sequential evaluation. See 20 C.F.R. §§ 404.1525(a), 416.925(a); Sullivan v. Zebley,
493 U.S. 521, 529-30 (1990) (the listings describe impairments severe enough to
prevent a person from doing any gainful activity).
However, as the ALJ correctly found, Dr. Wilson’s opinion that Plaintiff
suffered from disabling mental retardation was contrary to the other medical source
opinions in the record. First, Mr. Cates was also examined by Dr. Nichols, another
one-time consultative examiner, on November 29, 2011. (Tr. at 200-03.) Dr.
Nichols observed Plaintiff to be oriented as to person, place, time, and situation; he
had adequate mental processing speed; and he could perform simple addition,
subtraction, and multiplication. (Tr. at 201-02.) According to Dr. Nichols, Plaintiff
exhibited intact recent and remote memory; lacked a general fund of knowledge;
and was somewhat concrete in thought. (Id.) Her diagnostic impression was bipolar
II disorder, current episode mixed, mild; polysubstance dependence in remission
by patient report; and a global assessment of functioning of 65. (Id.) Dr. Nichols
Commissioner explained this change “does not affect the actual medical definition of the
disorder….” Id. at 46,500. To avoid confusion, this opinion uses the term “mental retardation”
employed by the ALJ and Dr. Wilson.
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commented that Plaintiff did not have deficits that would interfere with his ability
to understand, carry out, and remember simple work related instructions; he could
handle his own funds; and he could live independently. (Id. at 203). Dr. Nichols
commented that Plaintiff’s ability to relate interpersonally and withstand the
pressures of everyday work was mildly compromised due to the nature of his mood
disturbance. (Id.) Dr. Nichols opined that with mental health treatment, his
condition would improve. (Id. at 203.) Substantial evidence supports the ALJ’s
decision to accord little weight to Dr. Wilson’s findings, and instead, accord
greater weight to the opinions of Dr. Nichols, because her examination findings
were more consistent with Plaintiff’s significant daily activities, educational
background, and work history.
Indeed, both Drs. Nichols and Wilson are licensed psychologists who
examined Plaintiff on only one occasion, and therefore, are not entitled to greater
or lesser weight based on their specialty or relationship with Plaintiff. 20 C.F.R. §§
404.1527(c)(1), (c)(5), 416.927(c)(1), (c)(5). However, Plaintiff’s significant
educational and work history and daily activities better supported Dr. Nichols’
opinion and were contrary to Dr. Wilson’s mental retardation diagnosis. Id. at §§
404.1527(c)(3), 416.927(c)(3). Importantly, both the ALJ and a medical expert, Dr.
Anderson, who testified at the hearing, questioned Dr. Wilson’s diagnosis of

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mental retardation. (Tr. at 20, 49). This is because Plaintiff was a high school
graduate who was enrolled in regular classes and never required special education
services. (Tr. at 20, 49, 127, 191, 201, 225, 268). Though he made C’s, D’s, and F’s
in school, Plaintiff stated that his low grades in school were at least partially a result
of his own truancy. (Tr. at 20, 49, 127, 191, 201, 225, 268.) Additionally, Plaintiff
had worked for many years in various jobs such as a construction, sanitation, and
fast food worker. (Tr. at 36-37, 201). Indeed, as noted by the ALJ, Plaintiff reported
he had hung sheetrock for 20 years for cash while working for his father. (Tr. at
192, 271, 279). When the ALJ asked him why he cannot work the claimant replied:
“Honestly, sir, I don’t like - - when somebody tells me what to do, I won’t do it to
their standards. I’ll do it my way or no way. I don’t like to be around other people.”
(Tr. at 39). The ALJ also explained that Plaintiff could take care of his personal
hygiene, feed himself, and surf the internet. (Tr. at 46, 151, 202). In particular,
Plaintiff stated he lived alone in a mobile home on his father’s property (tr. at 34,
149, 202), owned a car and could drive (tr. at 34), cooked simple meals (tr. at 46,
151), ate three times per day (tr. at 202), performed chores such as laundry, light
cleaning, and mowing the grass (tr. at 46, 151), had no problems with personal care
(tr. at 150), went shopping for food and clothes (tr. at 152), and could pay bills and
count change (tr. at 152).

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Furthermore, the ALJ also noted material discrepancies between Drs.
Wilson’s and Nichols’ examinations. (Tr. at 20-21). Dr. Nichols found Plaintiff had
adequate mental processing speed with the ability to perform simple mathematical
calculations, including counting backwards from 20 to 1 in just 8 seconds. (Tr. at
20, 201). By contrast, Dr. Wilson reported Plaintiff could not count backwards
from 20 and struggled for over a minute and a half to do so. (Tr. at 20, 227). These
discrepancies suggested Plaintiff was exaggerating his symptoms with Dr. Wilson
because intellectual functioning is generally consistent over time. See Hodges v.
Barnhart, 276 F.3d 1265, 1268-69 (11th Cir. 2001). During Dr. Wilson’s
examination, Plaintiff also underreported his significant work history, stating “I
haven’t really worked” except sporadically. (Tr. at 225). These discrepancies
provided further support for the ALJ’s decision to accord little weight to Dr.
Wilson’s opinion.
Plaintiff argues that because Dr. Wilson found that that Plaintiff had an IQ of
59, and Dr. Nichols did not perform an IQ test, that the ALJ was required to adopt
Dr. Wilson’s opinion and find Plaintiff disabled under Listing 12.05 pertaining to
mental retardation. However, in another case, the Eleventh Circuit explained, “the
ALJ was not required to find that [Plaintiff] was mentally retarded based on the
results of the IQ test. The ALJ is required to examine the results in conjunction

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with other medical evidence and the claimant’s daily activities and behavior.” Popp
v. Heckler, 779 F.2d 1497, 1499-1500 (11th Cir. 1986). Listing 12.05 requires both a
certain low IQ score and substantial deficits in adaptive functioning before age 22,
which were not proven in this case, given Plaintiff’s substantial work history,
educational background, and significant daily activities. See 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.00(A), § 12.05(B); Sullivan, 493 U.S. at 530 (a claimant’s
impairment must manifest all of the medical criteria specified in the listing in order
to “meet” the listing). Indeed, numerous Eleventh Circuit cases support reliance
on considerations similar to those cited by the ALJ (work history, educational
background, and significant daily activities), when assessing a claim of mental
retardation under Listing 12.05. See Perkins v. Comm’r of Soc. Sec., 553 F. App’x
870, 873 (11th Cir. 2014) (finding that despite low IQ scores, the ALJ properly
considered claimant’s work experience when finding claimant did not meet the
listing for mental retardation); Hickel v. Comm’r of Soc. Sec., 539 F. App’x 980, 985
(11th Cir. 2013) (finding despite a low IQ score, claimant lacked deficits in adaptive
functioning where claimant graduated from high school, worked part time, drove,
prepared simple meals, and groomed and bathed herself); Harris v. Comm’r of Soc.
Sec., 330 F. App’x 813, 815 (11th Cir. 2009) (finding ALJ did not err in rejecting
examining psychologist’s opinion indicating mental retardation because claimant

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could hold down jobs, dress and bathe himself, take care of his personal needs,
manage money, read, and do simple math).
Aside from Dr. Nichols’ opinion after examination, the opinions of Dr.
Anderson, the medical expert, and Dr. Estock, the non–examining reviewing
physician, supported the ALJ’s decision to give Dr. Wilson’s opinion little weight.
Dr. Anderson described Plaintiff’s diagnosis, treatment, and prognosis as follows:
We have a 42-year-old gentleman with a mental health problems. He
has a diagnosis of bipolar disorder too, a history of poly-substance
abuse with self-support of abstinence since filing for disability. He has
an evaluation or complications of his substance abuse and he has a
positive screening test for hepatitis C. He has no symptoms associated
with liver disease and no treatment. The record reflects that he has
mild to moderate restrictions based upon his mental health disorders,
and physical situation, he would not meet or equal listings with
disability. I believe that he would be able to do all age appropriate
activities from heavy to medium work would be included. Based upon
the evaluation by Dr. Nichols in 2F, I would suggest that his work
activities should be restricted to simple repetitive work activity.
(Tr. at 48.) As noted, Dr. Anderson questioned Dr. Wilson’s diagnosis of mental
retardation because Plaintiff graduated high school with no special education
classes. (Tr. at 49.) Great weight was given to the opinion of Dr. Anderson because
his findings were supported by the record and he was deemed to be a “highly
qualified expert in Social Security disability evaluation.” See 20 C.F.R. §§
404.1527(f)(2)(i), 416.927(f)(2)(i). The ALJ also discussed the consultative report

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of the non-examining State agency doctor Robert Estock. (Tr. at 205-22.) Dr.
Estock opined that Plaintiff had mild restriction in activities of daily living;
moderate restriction in social functioning; and moderate restriction in
concentration, persistence, and pace. (Tr. at 216.) Dr. Estock commented that
Plaintiff could understand, remember, and carry out simple instructions; he could
concentrate for 2-hour periods on simple tasks with customary breaks; and he
should work in an area without close proximity to others with only casual
interaction with the general public, gradually introduced changes in the work place,
and non-confrontational, supportive, feedback from supervisors and co-workers.
(Tr. at 220.) As Dr. Estock’s opinion was consistent with Dr. Nichols’ opinion and
the other record evidence, the ALJ gave it significant weight.
The foregoing establishes that substantial evidence supports the ALJ’s
decision to accord Dr. Wilson’s opinion little weight. As Dr. Wilson’s conclusion
that Plaintiff was mentally retarded to the extent that he would be unable to
function was not supported by the record, the ALJ did not err in giving it little
weight.
B.

Failure to Develop the Record

Plaintiff contends that the ALJ erred by not ordering additional IQ tests. The
ALJ has a duty to develop the facts fully and fairly and to probe conscientiously for

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all of the relevant information. Ware v. Schwieker, 651 F.2d 408, 414 (5th Cir. 1981).
However, in all social security disability cases, the claimant bears the ultimate
burden of proving disability, and is responsible for furnishing or identifying medical
and other evidence regarding his impairments. See Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987); 42 U.S.C. § 423(d)(5). An ALJ has many options, but no affirmative
requirements, for settling an inconsistency or insufficiency in a claimant’s medical
record. See 20 C.F.R. § 404.1520b. He has the option to contact the treating
physician, ask the claimant for additional records, request a consultative
examination, or ask the claimant and/or others for more information. Id. The ALJ
may exercise all or none of these potential remedies. Id. He is not required to take
any of those steps if he determines that weighing the available evidence will be
sufficient. Id. Therefore, where the ALJ’s findings are supported by evidence
sufficient for a decision, the ALJ is not obligated to seek additional medical
testimony. See Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999).
Furthermore, before remanding for further development of the record, a
reviewing court must consider “whether the record reveals evidentiary gaps which
result in unfairness or ‘clear prejudice.’” Smith v. Schweiker, 677 F.2d 826, 830
(11th Cir.1982) (quoting Ware, 651 F.2d at 413). “Although the ALJ has a duty to
develop a full and fair record, there must be a showing of prejudice before [a

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reviewing court] will remand for further development of the record.” Robinson v.
Astrue, 365 F. App’x 993, 995 (11th Cir. 2010) (citing Brown v. Shalala, 44 F.3d 931,
935 (11th Cir. 1995)).
Here, additional IQ testing would not have changed the fact that Plaintiff did
not suffer from the deficits in adaptive functioning required to meeting Listing
12.05. As already noted, Plaintiff had significant work history, educational
background, and activities of daily living, and even where low IQ scores are
present, the ALJ can properly consider these other factors when finding that the
claimant did not meet the listing criteria for mental retardation. See Perkins, 553 F.
App’x at 873; Hickel, 539 F. App’x at 985; Harris, 330 F. App’x at 815. The
plaintiff could perform the same tasks as the claimants in the above cases. (Tr. at
20, 34, 36-7, 46, 149, 150-2, 192, 201-2, 271, 279.)
Moreover, the ALJ was not required to order additional IQ testing because
the record contained sufficient evidence for the ALJ to make an informed decision.
KDB ex. rel. Bailey v. Soc. Sec. Admin., 444 F. App’x 365, 368 (11th Cir. 2011).
Indeed, the ALJ had already ordered two consultative examinations by two
different doctors and had a medical expert testify at the hearing. (Tr. at 47-49, 20003.) Although Dr. Nichols did not perform IQ testing, the evidence better
supported Dr. Nichols’ opinions regarding Plaintiff’s intellectual abilities and

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provided substantial evidence in support of the ALJ’s decision to accord Dr.
Wilson’s opinion limited weight.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr. Cates’s

arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.
DONE and ORDERED on January 5, 2016.

_____________________________
L. Scott Coogler
United States District Judge
160704

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