Robinson v. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER entered that after considering the administrative record and the memorandum of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be dismissed, as further set out in order. Signed by Magistrate Judge Bert W. Milling, Jr on 11/5/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANGELA ROBINSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 15-0078-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1381(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling denying a claim for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13-14).
The parties filed written consent and this action was referred
to the undersigned Magistrate Judge to conduct all proceedings
and order judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73 (see Doc. 20).
action (Doc. 22).

Oral argument was waived in this

After considering the administrative record

and the memoranda of the parties, 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
substitute its judgment for that of the Secretary of Health and

1

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).

Substantial

evidence 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, Robinson was
forty-seven years old, had completed an eight-grade education
(see Tr. 271), and had previous work experience as a certified
nurse assistant (hereinafter CNA), a clean-up worker, and
hospital housekeeper (Tr. 80-81).

Plaintiff alleges disability

due to major depressive disorder, panic disorder, degenerative
disc disease, back pain, head injury, dermatitis, Post Traumatic
Stress Disorder (hereinafter PTSD), mild mental retardation, and
right arm pain (Doc. 14).
The Plaintiff applied for disability benefits and SSI on
September 2, 2011, asserting an onset date of August 18, 2011
(Tr. 18, 193-202).

An Administrative Law Judge (ALJ) denied

benefits, determining that although she could not return to her
past relevant work, there were specific light work jobs that
Robinson could perform (Tr. 18-45).

Plaintiff requested review

of the hearing decision (Tr. 9-13), but the Appeals Council

2

denied it (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Robinson

(1) The ALJ improperly discounted her testimony;

(2) the ALJ did not accord proper weight to the opinions of
particular examiners; (3) the ALJ failed to properly assess her
PTSD; (4) she meets the requirements of two different Listings;
and (5) the Appeals Council did not properly consider newlysubmitted evidence (Doc. 13).
denies—these claims (Doc. 17).

Defendant has responded to—and
The Court’s summary of the

relevant evidence follows.
On May 3, 2011, Robinson was seen at Anderson Family
Medical Center for complaints of back pain, radiating into her
legs; she was prescribed medication refills (Tr. 394-95).

On

September 7, Plaintiff complained of depression, insomnia, and
pain in her right arm and back (Tr. 390-91).

On September 28,

Robinson was looking to get shots for her back pain (Tr. 38889).
On October 20, Plaintiff went to Weems Community Mental
Health Center (hereinafter Weems), stating that she was
suffering panic attacks, depression, nightmares, and severe
anxiety from an event seven years earlier wherein her husband
attacked her with a sledgehammer; though he had gone to prison,
he had since been released and she reported that he tried to run

3

her off the road with his car in July 2011 (Tr. 426-32).
Robinson had previously received disability, but it was stopped
after she started working (Tr. 386); she reported that she had
last worked in August 2011, but quit after pushing her
supervisor in frustration.

Though Plaintiff had undergone

reconstructive surgery on her arm after her husband’s
sledgehammer attack, she reported no physical impairments.
Robinson’s thought content was logical and short- and long-term
memory was intact; judgment was thought to be moderately
impaired.

Plaintiff was diagnosed to have Depressive Disorder,

NOS, Anxiety Disorder, NOS, and PTSD.

On November 3, 2011,

Weems reported that Plaintiff was taking Celexa,1 Klonopin,2 and
Trazodone;3 she stated she was unable to concentrate but her
medications helped (Tr. 422-24).
fair.

Insight and judgment were

On January 25, 2012, Robinson reported doing better with

her depression, but was having headaches; Vistaril4 was
prescribed (Tr. 419-20).
On November 15, 2011, Psychologist Nina E. Tocci reported
that Robinson was unable to wait in her waiting room because

1Celexa is used in treating depression.

Error! Main Document
Only.Physician's Desk Reference 1161-66 (62nd ed. 2008).
2
Klonopin is a class four narcotic used for the treatment of
panic disorder. Error! Main Document Only.Physician's Desk Reference
2732-33 (62nd ed. 2008).
3
Error! Main Document Only.Trazodone is used for the treatment of
depression. Physician's Desk Reference 518 (52nd ed. 1998).
4Vistaril is used to treat anxiety and tension and may be used to

control nausea and vomiting. http://www.drugs.com/vistaril.html

4

there was a man sitting there and she was scared (Tr. 289-93).
Affect was appropriate and normal; she demonstrated forced
attention and concentration.

Plaintiff had a poor fund of

information and comprehension; she had logical thought
organization and her thought content was appropriate.

Robinson

had difficulty remaining focused and used breathing techniques
and self-talk to remain calm.

She had good insight and fair

social judgment; Tocci thought she was functioning within the
borderline range of intellectual ability.

The Psychologist’s

impression was recurrent, moderate Major Depressive Disorder and
Panic Disorder with a poor prognosis; she indicated that she
would have difficulty learning, performing, and completing job
tasks.

Tocci indicated Robinson’s GAF was 55.5

On November 21, 2011, Dr. Richard S. Abney examined
Plaintiff who was breathing in a paper bag during most of the
exam; accompanying family members said she had a history of
headaches, a residual of her husband’s attack, but had no other
physical problems (Tr. 299-304; cf. Tr. 324-27).

Straight leg

raise was limited to 60º; Robinson mentioned low back—but no
radicular—pain.

She had normal range of motion (hereinafter

ROM) in her upper and lower extremities and had normal gait.

5Error!
 Main
 Document
 Only.“A GAF score between 51-60 indicates

“moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational or school functioning (e.g., few friends, conflicts with
peers or co-workers).” American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders, 32 (4th ed. 1994).

5

Dr. Abney’s impression was depression, panic attacks,
hyperventilation, and traumatic injury (with no corresponding
physical findings) by history.
On November 29, 2011, Linda Duke, a non-examining
Psychologist reviewing Robinson’s file as of that time,
completed a Psychiatric Review Technique Form, indicating that
Plaintiff suffered from borderline intellectual functioning and
had a recurrent, moderate Major Depressive Disorder and a panic
disorder (Tr. 306-19).

Duke suggested that Plaintiff had mild

restrictions of daily living activities, moderate difficulties
in maintaining social functioning and in maintaining
concentration, persistence, or pace, and had had no episodes of
decompensation of extended duration.

On that same day, Duke

completed a mental residual functional capacity assessment,
indicating that Plaintiff would be moderately limited in her
ability to understand, remember, and carry out detailed
instructions; maintain attention and concentration for extended
periods; interact appropriately with the general public; accept
instructions and respond appropriately to criticism from
supervisors; and maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness (Tr. 32023).

Duke found no marked limitations.
On December 15, Robinson went to the Anderson Regional

Medical Center Emergency Room following a motor vehicle

6

accident, causing head, neck, and lower back pain rated at two
on a ten-point scale (Tr. 332-51).

An x-ray of the lumbosacral

spine disclosed no fracture or dislocation though there was
anterior spurring at the L3-4 level with modest posterior
spurring at the L3-4 level and disc space narrowing at the L5-S1
level; a chest x-ray was unremarkable.

A brain CT demonstrated

reversal of normal cervical curvature with mild posterior
spurring at the C4-5 level.
On February 14, 2012, Dr. Katherine Hensleigh examined
Robinson for a rash on her face and under her stomach (Tr. 43539).

Plaintiff had normal ROM, muscle strength, and stability

in all extremities with no pain; she was oriented in four
spheres, had normal insight and exhibited normal judgment.

The

records showed that Robinson had prescriptions for Lortab6 and
Flexeril.7

On May 9, Dr. Hensleigh examined Plaintiff for a mole

on the side of her neck and eczema on the soles of her feet; the
Doctor noted moderate abdominal tenderness (Tr. 513-15).

On May

30, Robinson was experiencing a cough, sinus pressure, and sore
throat; though Robinson no longer had abdominal tenderness,
Hensleigh noted tenderness in the lumbar spine with mild pain on

6Error! Main Document Only.Lortab is a semisynthetic narcotic

analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).
7Error!
 Main
 Document
 Only.Flexeril is used along with “rest and

physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).

7

motion (Tr. 510-12).

On June 5, 2012, Plaintiff complained of

lower back pain, radiating into both calves; she had moderate
abdominal tenderness and moderate pain with motion in the lumbar
spine (Tr. 507-09).

The Doctor gave her an injection of

Demerol,8 Phenergan,9 and Decadron.10

On June 15, Robinson was

having problems with hypertension; she had normal ROM, muscle
strength, and stability in all extremities with no pain (Tr.
504-06).

Hensleigh noted insomnia and generalized anxiety

disorder.
On August 15, Plaintiff went to Alabama Mental Health
Center (hereinafter AMHC), complaining that she was
uncomfortable being out in public (Tr. 470-73).

On October 24,

her Doctor noted that Robinson was oriented in four spheres with
her memory intact and reasoning good; thought processes were
logical (Tr. 477-78).

Her mood was anxious while judgment and

impulse control were fair; Plaintiff was diagnosed to have PTSD
and recurrent major depression.

Over a six-month period

beginning in August 2012, she attended five individual and
family counseling; Robinson’s sleep and appetite improved (Tr.

8Error!
 Main
 Document
 Only.Demerol is a narcotic analgesic used for

the relief of moderate to severe pain. Physician's Desk Reference
2570-72 (52nd ed. 1998).
9Error!
 Main
 Document
 Only.Phenergan is used as a sedative, sleep aid,

or to treat nausea, vomiting, or pain.
http://www.drugs.com/phenergan.html
10Error!
 Main
 Document
 Only.Decadron is a corticosteroid used for,

among other things, the treatment of rheumatic disorders. Physician's
Desk Reference 1635-38 (52nd ed. 1998).

8

465-69).
On September 12, 2012, Plaintiff saw Dr. Hensleigh who
noted tenderness, and mild pain on motion, in the lumbar spine
for which she was given an injection including Toradol11 (Tr.
500-03).

On October 5, Robinson had cold symptoms and was

feeling fatigued and malaise and experiencing back and joint
pain; Dr. Hensleigh noted no abdominal tenderness though there
was tenderness and mild pain in the lumbar spine (Tr. 496-99).
On November 12, Plaintiff went to the Choctaw General
Hospital Emergency Department for complaints of back pain; it
was noted that she had ROM intact for all extremities with no
muscle weakness (Tr. 446-51).
injection.

Robinson received a Toradol

On December 5, Plaintiff returned to the Emergency

Department because of back pain radiating into the left thigh;
she had full ROM with no muscle weakness (Tr. 441-45).

She

received an injection.
On January 8, 2013, Dr. Hensleigh examined Plaintiff for
back pain; the Doctor characterized the pain as moderate and
gave her an injection (Tr. 492-95).

On January 15, an MRI of

the lumbar spine demonstrated degenerative changes of the L3-4
and L-S1 levels (Tr. 521).

More specifically, there was “disc

desiccation noted from L3-L4 through the L5-S1 levels.

Mild to

11Toradol is prescribed for short-term (five days or less)

management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).

9

space narrowing noted at these levels and greatest at the L3-L4
level” (Tr. 521).

At L5-S1, there was a disc bulge resulting in

mild effacement of the ventral thecal sac but no significant
effacement of the nerve root (Tr. 521).

On January 29, 2013,

Robinson’s back still hurt, so she received another injection
(Tr. 488-91).

On February 6, Plaintiff saw her doctor for cold

symptoms; her back pain was only mild, but she received another
injection (Tr. 484-87).
On February 5, Robinson reported to AMHC that she was
having visual hallucinations but stated she was resting better
with Zoloft12 and Trazodone; she complained of tension and pain
in her back (Tr. 474-76).

Her mood was irritable and depressed;

her intellect was thought to be average.
judgment were good.

Impulse control and

Her Zoloft prescription was increased.

On February 18, Dr. Lenard Rutkowski examined Robinson for
complaints of low back pain radiating into the left thigh and
leg (Tr. 526-28).

On exam, the Doctor noted sacroiliac joint

tenderness and that straight leg raising was abnormal
bilaterally; she also had a pulling sensation bilaterally at
ninety degrees.

Plaintiff had full strength in all extremities.

She was referred to physical therapy and underwent three
sessions over a two-week period (Tr. 453-62).

12Error!
 Main
 Document
 Only.Zoloft is “indicated for the treatment of

depression.”

Physician's Desk Reference 2229-34 (52nd ed. 1998).

10

On March 6, Psychologist Donald W. Blanton examined
Robinson who looked sad and scared; thoughts were logical and
associations were intact with no confusion (Tr. 479-82).
Plaintiff complained of anxiety and was restless; she was
depressed and cried often.

The Psychologist indicated she

appeared to have slight psychomotor retardation; insight was
limited but her judgment was good for work and financial
decisions.

On the Wechsler Adult Intelligence Scale, Fourth

Edition, Robinson obtained a Full Scale IQ score of 65, placing
her in the mild range of mental retardation.

On the Wide Range

Achievement Test, she scored a third grade level of reading,
spelling, and math.

The Beck Depression Inventory II

demonstrated that she was seriously depressed.

It was Blanton’s

opinion that the test results were valid; his diagnostic
impression was that she had PTSD, pain disorder with depression,
mild mental retardation, and orthopedic problems.

The

Psychologist indicated his opinion that Robinson had marked
limitations in her ability to understand, remember, carry out,
and use judgment in detailed or complex instructions, respond to
customary work pressures, and maintain attention and
concentration and pace for at least two hours.

Blanton thought

this was a lifelong condition; he further indicated that she had
demonstrated deficits in adaptive functioning, before she was
twenty-two years of age, in communication, social interpersonal

11

skills, work, health safety, and functional academic skills.
On June 3, 2013, the ALJ entered his decision, finding that
Plaintiff was capable of performing light, unskilled jobs and
was, therefore, not disabled (Tr. 18-45).

This concludes the

Court’s summary of the evidence.
In bringing this action, Plaintiff first claims that the
ALJ did not properly consider her testimony of pain and
limitation (Doc. 13, pp. 10-14).

The standard by which

Robinson’s complaints of pain are to be evaluated requires "(1)
evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain."

Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)

(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986)).

The Eleventh Circuit Court of Appeals has also held

that the determination of whether objective medical impairments
could reasonably be expected to produce the pain was a factual
question to be made by the Secretary and, therefore, "subject
only to limited review in the courts to ensure that the finding
is supported by substantial evidence."

Hand v. Heckler, 761

F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774
F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275

12

(11th Cir. 1986).

Furthermore, the Social Security regulations

specifically state the following:
statements about your pain or other symptoms
will not alone establish that you are
disabled; there must be medical signs and
laboratory findings which show that you have
a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent with the medical signs and
laboratory findings), would lead to a
conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2015).
In his decision, the ALJ discounted Robinson’s statements
for multiple reasons.

The first was that she testified about

medical treatment that she had received that indicated possible
future surgery; the ALJ noted that the evidence was not in the
record (Tr. 35).

Though Plaintiff takes offense at the ALJ’s

finding (Doc. 13, p. 10), the fact remains that the records were
not made available to the ALJ before his decision date of June
3, 2013, even though the examination took place on May 8 (see
Tr. 538-39).

Social security regulations state that a claimant

is responsible for providing evidence from which the ALJ can
make an RFC determination.

20 C.F.R. § 404.1545(a)(3) (2015).

Next, the ALJ found that Robinson’s testimony of lost grip

13

in her right hand and use of the right arm, generally, was
unsupported by the medical records as she had returned to
medium-level work following medical treatment for the right arm
injuries inflicted on her by her ex-spouse (Tr. 36).

Plaintiff

does not challenge this credibility finding (Doc. 13, pp. 1014).
The ALJ discounted Robinson’s headaches as unsupported by
the evidence as her complaints were infrequent (Tr. 36).
Plaintiff does not challenge this finding (Doc. 13, pp. 10-14).
The ALJ discounted Robinson’s pain as less extensive than
alleged, noting that the objective medical evidence did not
support her assertions (Tr. 36-37).

Though Plaintiff, in her

brief, summarizes subjective complaints made to various doctors
during her treatment history (Doc. 13, p. 13), she fails to
point to objective evidence supporting those complaints.
The ALJ also found inconsistency in Robinson’s reports of
when she let her driver’s license expire (Tr. 37).

Though

Robinson argues that this is not important as the ALJ failed to
question her about it at the evidentiary hearing (Doc. 13, p.
12), the inconsistency remains unexplained and a reason for the
ALJ to discount her testimony.
The ALJ also found Plaintiff not credible in testifying
that she had had no vocational training, though having
previously reported that she had been trained as a CNA (Tr. 39;

14

cf. Tr. 71, 225).13
The ALJ discussed Robinson’s stress, depression, and
anxiety, caused in large part by her former husband’s attack
(Tr. 37).

He then noted that the “record contains different

accounts of when the sledgehammer attack occurred and the nature
of the attack” (Tr. 37).

In response, Plaintiff has summarized

her reports to various treating sources to show the consistency
of her testimony (Doc. 13, pp. 10-12).

The Court carefully

checked those reports and concludes that the ALJ’s timeline of
events appears to be out of sync with the events as they
factually occurred.

Nevertheless, the ALJ’s error is harmless

when considered alongside Robinson’s failure to address—much
less provide evidence to rebut—the ALJ’s conclusions that she
had not lost the use of her right arm, that she suffered
headaches only irregularly, and that there is no objective
evidence to support her claims of pain and limitation.

The

Court finds substantial support for the ALJ’s conclusion that
Robinson was not a credible source of information.
Plaintiff also claims that the ALJ did not accord proper
weight to the opinions of particular examiners.

Specifically,

13The Court rejects Plaintiff’s argument that because the ALJ did

not question her about her training or work as a CNA he cannot use it
to discredit her (see Doc. 13, p. 24). The Court, in reviewing the
more than five hundred pages of this transcript, came across several
instances wherein Robinson indicated that she had been a CNA (Tr. 225,
422, 479).

15

Robinson points to the opinions of Psychologist Tocci and
Blanton (Doc. 13, pp. 14-19).

It should be noted that "although

the opinion of an examining physician is generally entitled to
more weight than the opinion of a non-examining physician, the
ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion."

Oldham v. Schweiker,

660 F.2d 1078, 1084 (5th Cir. 1981);14 see also 20 C.F.R. §
404.1527 (2015).

In his decision, the ALJ gave little weight to Tocci’s
assessment as unsupported by the other evidence of record and
because the Psychologist “relied quite heavily on the subjective
report of symptoms and limitations provided by the claimant”
(Tr. 41).

He also gave little weight to Blanton’s assessment

for the same reasons (Tr. 41-42).
The Court notes that the two Psychologists’ opinions were
inconsistent with findings in their own reports.

Specifically,

Tocci found Plaintiff to have appropriate thought content and a
logical thought organization; she had good insight (Tr. 291).
Blanton found that Robinson’s thoughts and conversation were
logical with associations intact; she was oriented in four
spheres and had good judgment for work and financial decisions
(Tr. 479-80).

14The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions
of the former Fifth Circuit rendered prior to October 1, 1981.

16

The Court further notes that Tocci’s and Blanton’s opinions
find no support in the records of the Weems Community Mental
Health Center (Tr. 419-32) or the Alabama Mental Health Center
(Tr. 465-78).

Specifically, at Weems, on January 25, 2012,

Robinson’s depression was better and her only problem was her
headaches; her thought processes were organized (Tr. 419).

In

the prior examination, her intelligence was rated as average
(Tr. 423).

Two different doctors at the AMHC indicated that

Plaintiff was of average intelligence, oriented in four spheres,
with good reasoning, good insight, appropriate affect, intact
memory, and logical thought processes (Tr. 475, 477-78).

Though

the Centers reported Robinson’s problems as she reported them,
neither one indicated that she was unable to function in the
workplace.
In bringing this claim, Robinson takes exception to the
ALJ’s reliance on non-examining Psychologist Duke in reaching
his decision (Doc. 13, pp. 16-19; cf. Tr. 41, 306-19).

The

Court notes that a non-examining physician’s opinions can be
given greater evidentiary weight than the opinions of an
examining source so long as they are well-supported by the
evidence of record.
416.927(c and e).

20 C.F.R. § 404.1527(c and e); 20 C.F.R. §
While it is true that Psychologist Duke never

examined Plaintiff and relied only on the records in existence
at that time, her opinions more closely resembled the opinions

17

expressed by her treating sources (Weems and AMHC) than those of
one-time examiners Tocci and Blanton.

For all of these reasons,

the Court finds substantial support for the ALJ’s determinations
in rejecting the opinions of the two Psychologists.
Robinson next claims that the ALJ failed to properly assess
her PTSD (Doc. 13, pp. 19-22).

More particularly, Plaintiff

argues that the impairment should have been found to be a severe
impairment.

In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

1984), the Eleventh Circuit Court of Appeals held that "[a]n
impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the
individual's ability to work, irrespective of age, education, or
work experience."

Brady v. Heckler, 724 F.2d 914, 920 (11th

Cir. 1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985);
cf. 20 C.F.R. § 404.1521(a) (2004).15

The Court of Appeals has

gone on to say that "[t]he 'severity' of a medically ascertained
disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality."
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

McCruter

It is also

noted that, under SSR 96-3p, “evidence about the functionally

 15"An impairment or combination of impairments is not severe if
it does not significantly limit your physical or mental ability to do
basic work activities."

18

limiting effects of an individual’s impairment(s) must be
evaluated in order to assess the effect of the impairment(s) on
the individual’s ability to do basic work activities.”
In his decision, the ALJ listed specific impairments that
he found severe; though depression and panic disorder were
listed, PTSD was not (Tr. 20-21).

The ALJ discussed Plaintiff’s

mental impairments, finding them severe, but not disabling (Tr.
37-40).

The ALJ also specifically determined that her mental

impairments did not satisfy Listing 12.06 for Anxiety Related
Disorders.16

The Court notes that the ALJ extensively discussed

the events (her husband’s attack and threat of a second attack)
that led to the PTSD diagnosis in reaching his conclusion as
Plaintiff’s telling and re-telling of the incidents pervades the
record.

Nevertheless, Robinson has not shown how her PTSD

diminished her ability to work to any greater extent than her
depression, panic disorder, and anxiety already did (Doc. 13,
pp. 19-22).

Though the ALJ should have made a specific

determination as to the severity of her PTSD, his failure to do
so was, at most, harmless error.
Plaintiff claims that the ALJ improperly determined that
she did not meet the requirements of two different Listings; the
first is Listing 12.04 for Affective Disorders and the other is

16

Under the Social Security Administration’s Program Operations
Manual System DI 34001.032D.11, PTSD is an anxiety disorder. See
https://secure.ssa.gov/poms.nsf/lnx/0434001032#di34001032_mentalanxiety

19

Listing 12.05C for Intellectual Disability (Tr. 13, pp. 22-28).
The Court will address these issues separately.

Robinson first asserts that she meets the requirements of

Listing 12.04 for Affective Disorders.

Plaintiff asserts that

she meets the following requirements:
A claimant meets Listing 12.04 when the
evidence shows a depressive syndrome
characterized by at least four of the following:
anhedonia or pervasive loss of interest in almost
all activities; or appetite disturbance with
changes in weight; or sleep disturbance; or
psychomotor agitation or retardation; or
decreased energy; or feelings of guilt or
worthlessness; or difficulty concentrating or
thinking; or thoughts of suicide; or
hallucinations, delusions or paranoid thinking.
The syndrome must result in at least two of the
following: marked restriction of activities of
daily living; or marked difficulties in
maintaining social function; or marked
difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of
decompensation, each of extended duration. 20
C.F.R. 404, Subpart P, Appendix 1, Listing 12.04.
(Doc. 13, p. 22).

After setting out the requirements she

asserts she meets, Robinson listed all of the instances in the
medical record where she complains of the various symptoms.

She

does not, however, point to records where medical professionals
indicate their belief that she suffers these symptoms and find
her unable to work.

The ALJ found Plaintiff’s complaints

unsupported by the medical evidence, a finding substantially
supported by the evidence.

Robinson’s complaints garner no more

20

support in this claim than previously.

As such, Plaintiff has

failed to demonstrate that she meets the requirements of
subsection A of the Listing, obviating the need for the Court to
discuss the subsection B requirements.17

See 20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing 12.04 (2015) (“The required level
of severity for these disorders is met when the requirements in
both A and B are satisfied, or when the requirements in C are
satisfied”).

Robinson’s claim that she meets the requirements

of Listing 12.04 is without merit.
Plaintiff also asserts that she meets the requirements of
Listing 12.05C (Doc. 13, pp. 23-28).

The introductory notes to

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 (2015).

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
(2015).

17The Court notes that Plaintiff’s argument focuses on subsections

A and B of Listing 12.04, apparently conceding that she does not meet
the requirements of subsection C (Doc. 13, pp. 22-23).

21

The Court notes that although the regulations require that
Plaintiff demonstrate she suffered “deficits in adaptive
behavior” before she turned twenty-two, 20 C.F.R. Part 404,
Subpart P, Appendix 1, Listing 12.05 (2015), the Eleventh
Circuit Court of Appeals, in Hodges v. Barnhart, 276 F.3d 1265,
1266 (11th Cir. 2001), has 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.

presumption is rebuttable.

However, the

Hodges, 276 F.3d at 1267.

Plaintiff points to the WAIS Full Scale IQ score of 65, in
the testing conducted by Psychologist Blanton, as the basis for
this claim (Doc. 13, pp. 23-24).

She also points to Blanton’s

finding that she had “‘demonstrated deficits in adaptive
functioning due to her mental retardation manifested prior to
age 22’ in communication, social interpersonal skills, work,
health safety, and functional academic skills” (id.) (quoting
Tr. 481).
The ALJ rejected Blanton’s finding that Robinson met
Listing 12.05C because two of her physicians at West Alabama
Mental Health found her to be of average intelligence with no

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psychomotor retardation (Tr. 39).

The ALJ further rejected the

mental retardation diagnosis because treatment notes from WAMH
indicated no cognitive deficits.

Finally, the ALJ rebutted

Blanton’s assertion that Robinson had demonstrated deficits in
adaptive functioning before she turned twenty-two in noting that
Plaintiff had reported working as a CNA, characterized as semiskilled work (Tr. 39, 80).
The Court finds that the ALJ’s conclusion is supported by
substantial evidence.

The Court accords no weight to Robinson’s

suggestion that because the two doctors at WAMH were only
psychiatrists—instead of psychologists—they were guessing at her
intelligence level (Doc. 13, p. 24).

The Court finds that the

ALJ properly considered all of the evidence of record and
correctly determined that Plaintiff had not demonstrated that
she satisfied Listing 12.05C requirements.
Finally, Robinson asserts that the Appeals Council did not
properly consider newly-submitted evidence.
down to two different components:

This claim breaks

(1) The evidence included a

diagnosis of disc herniation; and (2) the evidence was rejected
solely on the basis of the treatment dates (Doc. 13, pp. 28-31).
The Court notes that a disability claimant can present new
evidence at any stage of the administrative proceedings.

20

C.F.R. §§ 404.900(b) and 416.1400(b) (2015); Ingram v.
Commissioner of Social Security, 496 F.3d 1253, 1261 (11th Cir.

23

2007).

If the evidence is first presented to the Appeals

Council, the Council considers it only if it relates “to the
period on or before the date of the [ALJ’s] hearing decision.”
20 C.F.R. §§ 404.970(b) and 416.1470(b).

If it is relevant to

the period under consideration, an examination is then made as
to whether the claimant has “establish[ed] that:

(1) there is

new, noncumulative evidence; (2) the evidence is 'material,'
that is, relevant and probative so that there is a reasonable
possibility that it would change the administrative result, and
(3) there is good cause for the failure to submit the evidence
at the administrative level."
877 (11th Cir. 1986).

Caulder v. Bowen, 791 F.2d 872,

If the Appeals Council determines that

the evidence provides no basis for changing the ALJ’s decision,
no further explanation is required.

Mitchell v. Commissioner,

771 F.3d 780, 783-85 (11th Cir. 2014).

The Court will now review

the submitted evidence and the Appeals Council’s consideration
of it.
Robinson first claims that the Appeals Council erred in
reviewing specific new evidence that included a diagnosis of
disc herniation (Doc. 13, pp. 28-30).

The evidence shows that

on May 8, 2013, approximately one month before the ALJ’s
determination was entered, Dr. Austin W. Gleason, at the Spine
Institute of Louisiana, examined Plaintiff who was in no acute
distress; she complained of lumbosacral pain with some radiation

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into the buttocks and down into her left leg to the knee and,
sometimes, into the right knee (Tr. 538-39).

Robinson had

decreased ROM—about thirty-five percent of normal with slight
discomfort with extreme flexion and extension; lateral flexion
was normal.

She had no neurological deficits.

Gleason reviewed

an MRI of the lumbar spine, performed on January 15, 2013 (Tr.
521), and noted mild degenerative changes throughout.

“At L5-

S1, there [was] a fairly large extruded fragment of disk
primarily on the left side but some degree on the right.

There

also [was] a degenerative disk at L3-L4 and also L5-S1” (Tr.
538).

The Doctor’s impression was herniated and extruded disk

fragment at L5-S1 and degenerative disk at L3-L4.

Gleason

indicated that surgery could probably be avoided; he prescribed
Lortab and a Medrol Dosepak.
The Court finds substantial support for the Appeals
Council’s decision that this evidence provided no basis for
changing the ALJ’s decision (see Tr. 2).
record before the ALJ.

The MRI was in the

Though Dr. Gleason provided a new

diagnosis, he indicated surgery was unnecessary as of yet, so he
prescribed medications.

The ALJ had already found Robinson to

have the severe impairment of degenerative disc disease of the
lumbar spine and accompanying back pain.

The new diagnosis,

with no accompanying new treatment regimen, provided no reason
to refer the action back to the ALJ as no new limitations were

25

suggested in the evidence.
Plaintiff also asserts that the Appeals Council erred in
rejecting newly-submitted evidence solely on the basis of the
treatment dates (Doc. 13, pp. 30-31).

The Appeals Council’s

rejection stated as follows:
We also looked at the medical records
from West Alabama Mental Health Center from
June 19, 2013 to May 25, 2014, from Choctaw
General Hospital from October 26, 2013 to
March 29, 2014, from Dr. David Malloy from
January 1, 2014 and from the Spine Institute
of Louisiana from October 16, 2013 to
November 4, 2013. The administrative Law
Judge decided your case through June 3,
2013. This new information is about a later
time. Therefore, it does not affect the
decision about whether you were disabled
beginning on or before June 3, 2013.
(Tr. 2).

The Appeals Council indicates that the evidence

appears in Exhibits 20F through 24F (Tr. 5; cf. Tr. 529-44).
Plaintiff admits that “the records are dated after the date
of the ALJ’s decision” (Doc. 13, p. 31).

This would normally be

the end of this enquiry because, as noted earlier, the Council
considers new evidence only if it relates “to the period on or
before the date of the [ALJ’s] hearing decision.”

20 C.F.R.

§§ 404.970(b) and 416.1470(b).
However, the Court has reviewed the evidence in question
and notes that it all appears to pre-date the ALJ’s decision
(Tr. 2; cf. Tr. Index 3, 529-44).

26

As such, the Appeals

Council’s rejection of it as untimely is error.
Nevertheless, the Court has reviewed the evidence and finds
that it is not new, noncumulative evidence.

More to the point,

most of it already appears in the record before the ALJ.
Court also finds that the evidence is not material.

The

More

specifically, the Court does not find a reasonable possibility
that it would change the administrative result.

For these

reasons, the Court finds that although the Appeals Council
committed error in rejecting the evidence as untimely, it is
only harmless error.
Robinson has raised five different claims in bringing this
action.

All are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 5th day of November, 2015.

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

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