White v. Astrue

Filing 29

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 2/29/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEFFERY WHITE,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0028-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 22).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 28).
argument was heard on February 27, 2012.

Oral

Upon consideration of

the administrative record, the memoranda of the parties, and
oral argument, it is ORDERED that the decision of the
Commissioner be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
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substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty-seven years old, had completed a ninth-grade education
(Tr. 39), and had previous work experience as a construction
worker, air conditioner mechanic helper, and brick mason helper
(Tr. 61).

In claiming benefits, White alleges disability due to

left eye blindness, hypertension, and mental retardation (Doc.
26 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on February 9, 2008 (Tr. 145-49; see Tr. 12).

Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that although he was not capable of
performing his past relevant work, White was capable of
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performing specified jobs in the medium-range classification of
work (Tr. 12-30).

Plaintiff requested review of the hearing

decision (Tr. 7-8) by the Appeals Council, but it was denied
(Tr. 1-3).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, White alleges

(1) The ALJ did not properly consider the opinions and

conclusions of the mental status examiner; (2) he meets the
requirements of Listing 12.05C; and (3) the ALJ improperly
relied on the opinion of a Disability Specialist in determining
his residual functional capacity (Doc. 22).

Defendant has

responded to—and denies—these claims (Doc. 23).

The relevant

medical evidence of record follows.1
A report from the Eye Clinic of Meridian on January 29,
2007 indicated that Plaintiff was, essentially, blind in his
left eye though his right eye was unremarkable (Tr. 227-31).
On December 26, 2007, White was seen by the Franklin
Primary Health Center for a rash; his blood pressure was 160/94
(Tr. 232-34).

Plaintiff was instructed to lose weight and

reduce salt in his diet.

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White’s asserted day of disability was December 9, 2006 (see Tr.
12), so no medical evidence pre-dating that date will be considered.
Also, the Court will not review evidence not relating to the claims

3

On May 19, 2008, Dr. Stephen J. Robidoux noted that White
was alert and “ambulating with normal unaided gait without white
cane or Seeing Eye dog or any assistance;” the doctor noted that
Plaintiff could not see with his left eye (Tr. 238; see
generally Tr. 235-40).

Robidoux found White to have full range

of motion (hereinafter ROM) in his neck, back, and in the upper
and lower extremities; his impression was:

(1) hypertension

uncontrolled; (2) poor medical compliance; (3) poor vision left
eye with near blindness; and (4) degenerative arthritis.

It was

the doctor’s opinion that Plaintiff was “limited in doing tasks
that don’t require depth perception and he should not drive
unless given a license . . . or operate heavy equipment where
visual depth perception and visual fields are important;”
Robidoux did not think there would be any limitations as far as
sitting, standing, lifting, carrying, bending, pushing, pulling,
or in the manipulation or handling of objects (Tr. 239-40).
A medical consultant named Leslie Jackson, working with the
Social Security Administration, completed a physical assessment
in which it was indicated that White would be capable of lifting
and carrying fifty pounds occasionally and twenty-five pounds
frequently; Plaintiff would be able to stand and sit for six

raised in this action.

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hours, each, during an eight-hour workday (Tr. 242-49).

White

would have no problems using hand or foot controls for pushing
and pulling and would be able to frequently climb, balance,
stoop, kneel, crouch, and crawl but would never be able to climb
a ladder; he would have no manipulative limitations, but would
be unable to do any work requiring depth perception.
Records from the Franklin Primary Health Center demonstrate
that White was treated for non-cardiac chest pain and
hypertension in June 2008 (Tr. 251-59).
On August 26, 2009, Psychologist Donald Blanton examined
Plaintiff who was having visual difficulties and used a cane to
walk with a left-sided limp; thoughts and conversation were
normal (Tr. 261-64).

No psychomotor retardation was noted; he

was oriented in four spheres.
judgment was fair.

White’s insight was limited and

Blanton administered the WAIS-IV on which

Plaintiff scored a seventy in verbal comprehension and a sixtynine in working memory.

Plaintiff also took the WRAT (Revised

III), but his visual problems, as in the WAIS-IV, made his
performance difficult to measure, though he scored a sixty-eight
on the reading portion.

On the Beck Depression Inventory II,

completed with the examiner’s assistance, White was found to be
severely depressed.

Blanton summarized his findings by stating
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that White

could not complete the entire intellectual
or academic testing today due to his visual
problems. It is the examiner’s opinion that
based upon the scores obtained on verbal
comprehension and processing speed, that his
true Full Scale IQ score would likely fall
in a similar range if he were able to
complete the examination. Academic
achievement testing reveals his academic
skills in reading are also quite poor.
Emotionally, he appears to have developed
serious depression problems since the onset
of visual problems and chronic pain. He was
encouraged to get into treatment at his
local mental health center.

(Tr. 263).

The Psychologist went on to diagnose Plaintiff to

suffer from major depression worsened by visual problems and
chronic pain, mild mental retardation (estimated), visual
problems, hypertension, reflux, and obesity.

Blanton also

expressed the opinion that White was markedly limited in his
ability to understand, remember, and carry out detailed
instructions; use judgment in detailed or complex work related
decisions; respond to customary work pressure; and maintain
attention, concentration and pace for a period of at least two
hours (Tr. 264).
Dr. Glenton Davis, on September 4 and September 25, 2009,
treated Plaintiff for hypertension and various pain complaints
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(Tr. 265-72).

The doctor completed a physical capacities

evaluation in which he indicated that White was capable of
lifting and carrying five pounds occasionally and one pound
frequently and could sit and stand or walk for one hour during
an eight-hour day; Davis indicated that Plaintiff needed an
assistive device to walk and that he should avoid dust, fumes,
gases, and extreme temperatures (Tr. 270).

The doctor further

stated that White would not be able to use arm and/or leg
controls, climb, balance, bend or stoop, reach, operate motor
vehicles or work around hazardous machinery; Davis suggested
that Plaintiff would miss more than four days of work a month
because of his impairments.

The doctor also completed a pain

assessment form in which he found that White’s pain would
distract him from adequately performing his daily activities;
that physical activity would cause him to abandon his tasks; and
that medication side effects would be severe and limit his
effectiveness (Tr. 271-72).

Davis also indicated that

Plaintiff’s medications would require him to lie down for four
hours per day.

This concludes the medical evidence.

White first claims that the ALJ did not properly consider
the opinions and conclusions of the mental status examiner.
More specifically, Plaintiff asserts that the opinions of
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Psychologist Blanton support a finding that he meets the
requirements of Listing 12.05C (Doc. 22, pp. 3-6).

The Court

will take up these two claims together.
The introductory notes to Listing section 12.05 state that
“[m]ental retardation refers to a significantly subaverage
general intellectual functioning with deficits in adaptive
behavior initially manifested during the development period;
i.e., the evidence demonstrates or supports onset of the
impairment before age 22.”

20 C.F.R. Part 404, Subpart P,

Appendix 1, Listing 12.05 (2011).

Subsection C requires "[a]

valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing an additional and
significant work-related limitation of function."

20 C.F.R.

Part 404, Subpart P, Appendix 1, Listing 12.05C (2011).
The Court notes that the ALJ specifically found that White
did not meet the requirements of Section 12.05C (Tr. 17-20).

In

reaching this conclusion, he specifically rejected the opinions
of Blanton (Tr. 18).

The ALJ first found that Plaintiff’s

depression was not severe (Tr. 18), a finding not challenged in
this action (see Doc. 22).

Next, the ALJ noted that there was

“no medically determined diagnosis of ‘Mental Retardation,’”
specifically noting that Blanton was unable to properly assess
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White’s abilities as he could not complete the tests (Tr. 18).
This failure led to Blanton’s indicating that he “estimated”
that Plaintiff was mentally retarded; the ALJ also correctly
noted that Blanton did not provide an opinion as to whether the
test results he actually obtained were valid (Tr. 18).

The ALJ

also noted that White had failed to demonstrate any indication
of “deficits in adaptive functioning . . . before the age of
22,” as required by the Regulations.

See 20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing 12.05 (2011).
Plaintiff has directed this Court’s attention to the
decision, Hodges v. Barnhart, 276 F.3d 1265, 1266 (11th Cir.
2001), in which the Eleventh Circuit Court of Appeals held “that
there is a presumption that mental retardation is a condition
that remains constant throughout life.”

The Hodges Court

further held “that a claimant need not present evidence that she
manifested deficits in adaptive functioning prior to the age of
twenty-two, when she presented evidence of low IQ test results
after the age of twenty-two.”

Hodges, 276 F.3d at 1266.

In this action, however, the ALJ rejected the test scores
as invalid and incomplete.

The Court further notes that the ALJ

pointed out that Blanton’s own examination notes revealed no
memory loss, no loose associations, no tangential thinking, and
9

no psychomotor retardation (Tr. 19).

Finally, the ALJ pointed

out the Vocational Expert’s testimony that Plaintiff’s past
employment included skilled and semi-skilled work (Tr. 19).
The Court finds that the ALJ’s rejection of Psychologist
Blanton’s opinions is supported by substantial evidence.

The

Court also finds that the ALJ’s conclusion that White has not
satisfied the requirements of Listing 12.05C is supported by
substantial evidence.

Plaintiff’s claim otherwise is without

merit.
White next claims that the ALJ improperly relied on the
opinion of a Disability Specialist in determining his residual
functional capacity (hereinafter RFC) (Doc. 22, pp. 6-7).
Plaintiff specifically refers to the Physical RFC Assessment
completed by Leslie Jackson (Tr. 242-49).

The Court notes that

the opinion of a nonexamining physician Ais entitled to little
weight and taken alone does not constitute substantial evidence
to support an administrative decision.@

Swindle v. Sullivan, 914

F.2d 222, 226 n.3 (11th Cir. 1990) (citing Broughton v. Heckler,
776 F.2d 960, 962 (11th Cir. 1985).
The ALJ noted the evaluation by “a non-examining state
agency consultant” and found it consistent with the other
evidence of record at the time it was given (Tr. 26).
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The ALJ

went on to assign it significant weight (id.).
The Court notes that Jackson did not examine White and was
not even a physician.

However, Plaintiff was seen by Dr.

Robidoux who did perform a thorough physical examination; though
Robidoux did not complete an RFC assessment, he gave his opinion
that although he should not drive and suffered with depth
perception problems, White had no limitations as far as sitting,
standing, lifting, carrying, bending, pushing, pulling, or in
the manipulation or handling of objects (Tr. 239-40).

The ALJ

noted these findings and “assigned them significant weight in
assessing the claimant’s residual functional capacity” (Tr. 25).
The ALJ also rejected the extreme limitations found by Dr. Davis
(Tr. 26), a finding not challenged by Plaintiff in this action
(see Doc. 22).

The Court finds that Plaintiff’s claim, that the

ALJ improperly relied on a Disability Specialist’s opinion in
determining his RFC, is without merit.
White has raised three claims in bringing this action.
are without merit.

All

Upon consideration of the entire record, the

Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
at 401.

Perales, 402 U.S.

Therefore, it is ORDERED that the Secretary's decision

be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th
11

Cir. 1980), and that this action be DISMISSED.

Judgment will be

entered by separate Order.
DONE this 29th day of February, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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