Jones v. Colvin

Filing 22

Memorandum Opinion and Order affirming the decision of the Commissioner and dismissing this action. Signed by Magistrate Judge Bert W. Milling, Jr on 7/28/2016. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NICHOLAS RYAN JONES,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 15-0650-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 denying claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 15).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order judgment in accordance with 28 U.S.C. §
636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc.
20).

Oral argument was waived in this action (Doc. 21).

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

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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 most recent administrative hearing,
Plaintiff was thirty-one years old, had completed a ninth-grade
education (Tr. 59), and had previous work experience as a heavy
equipment operator and construction equipment mechanic (Tr. 80).
Plaintiff alleges disability due to a history of pseudoseizure
activity, a somatoform disorder, and an intellectual disability
(Doc. 15 Fact Sheet).
The Plaintiff applied for disability insurance and SSI on
April 23, 2012, alleging a disability onset date of December 20,
2011 (Tr. 27, 246-61).

An Administrative Law Judge (ALJ) denied

benefits, determining that although Jones could not return to
his past work, there were specific medium-exertion jobs that he
could perform (Tr. 27-37).

Plaintiff requested review of the

hearing decision (Tr. 23), but the Appeals Council denied it
(Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence.

Specifically, Jones alleges

that the Appeals Council failed to properly consider newlysubmitted evidence of two different impairments (Doc. 15).
Defendant has responded to—and denies—these claims (Doc. 16).
The Court’s summary of the relevant record medical evidence
follows.
On August 3, 2011, Jones went to Wayne General Hospital
with complaints of low back pain following a seizure while
driving (Tr. 383).
On October 4, 2011, Jones went to the Washington County
Hospital Emergency Department after being hit in the upper lip
with metal while working on motor parts (Tr. 342-44).

He

received sutures and was told to take Tylenol.
On June 12, 2012, Plaintiff was seen by Neurologist Todd D.
Elmore for complaints of seizures over the past six-to-eight
years (Tr. 354-56).

The seizures caused confusion,

aggressiveness, and Jones’s not making any sense; he was no
longer working, but it was not due to the seizures.

Elmore

noted that Plaintiff was alert and oriented, had intact memory,
and had normal attention span and concentration; receptive and
expressive language skills were normal.

Jones had an adequate

fund of knowledge concerning current and past events and
adequate insight for his age.

The Neurologist’s impression was

probably complex partial seizure disorder with rare secondary

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generalization accompanied by compliance issues; it was his
opinion that Jones could work a sedentary job so long as a
seizure would not endanger him or others.

Elmore recommended

further testing.
On May 10, 2013, Jones went to Victory Health Center for a
seizure; though he had taken medication previously, he had not
taken anything since 2010 (Tr. 357-58).

Plaintiff was

instructed to stop smoking and to take his seizure medications.
On August 30, 2013, Plaintiff went to Victory Health
Partners following a seizure (Tr. 389).
On October 9, 2013, Psychologist John W. Davis examined
Jones at the request of the Social Security Administration (Tr.
391-98).

Plaintiff reported experiencing seizures or “spells”

for the previous ten-to-twelve years that occur daily, sometimes
fifteen times a day; his wife had told him that sometimes he was
“loving” while at others he was quite aggressive.

Medications

had decreased the severity of the spells, but had not stopped
them.

Davis noted that Jones had normal communication and mood

with no indications of deficits in concentration or attention;
there were no loose associations, tangential or circumstantial
thinking, or confusion.
fair.

Judgment and insight were considered

Jones spent his days doing yard work and gardening; his

intellectual level was thought to be low average.

Psychologist

Davis indicated that Plaintiff had a Somatoform Disorder, NOS;

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his prognosis, with treatment, was guarded.

Davis also made the

following findings:
The claimant’s ability to understand
and remember complex instructions, carry out
complex instructions, and make judgments on
complex work-related decisions is moderately
to markedly impaired at this time due to the
reported unpredictable nature of
pseudoseizure-type episodes.
The claimant’s ability to interact
appropriately with the public, supervisors,
and co-workers; and to respond appropriately
to usual work situations and to changes in
routine setting is moderately impaired at
this time due to reported aggressive
behavior during pseudoseizure-type episodes.
(Tr. 395).
In her decision, the ALJ found that Jones had severe
impairments of a history of pseudoseizure activity and
somatoform disorder (Tr. 29).

She went on to find that

Plaintiff had not demonstrated that he met the requirements of
any of the disability listings (Tr. 30).

The ALJ then found

that Jones could perform a reduced range of medium-exertion
work, naming specific jobs that he could perform (Tr. 31-36).
In evaluating the evidence, the ALJ rejected the testimony of
Plaintiff and his wife (Tr. 32-34).1

1Plaintiff has asserted that the ALJ did not make explicit

findings regarding his credibility (Doc. 15, p. 12). Though
technically true, the ALJ did point out that his testimony was
inconsistent with reports given to his doctors and at odds with his
professed activities (Tr. 32-33).

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This concludes the Court’s summary of the evidence.
In bringing this action, Jones claims that the Appeals
Council failed to properly consider newly-submitted evidence of
two different impairments (Doc. 15).

More specifically,

Plaintiff asserts that the new evidence should have led the
Appeals Council to remand this action to the ALJ to determine
whether he suffered from the severe impairments of seizure
disorder and intellectual disability.
The Court notes that the Appeals Council considers
additional evidence submitted by a claimant if it is new,
material, and chronologically relevant.

20 C.F.R. § 404.970(b).

The Appeals Council must then decide if the new information
renders the ALJ’s “action, findings, or conclusion [] contrary
to the weight of the evidence currently of record.”

Id.

The

Eleventh Circuit Court of Appeals has held that “when a claimant
properly presents new evidence to the Appeals Council, a
reviewing court must consider whether that new evidence renders
the denial of benefits erroneous.”

Ingram v. Commissioner of

Social Security Administration, 496 F.3d 1253, 1262 (11th Cir.
2007).

The new evidence presented to the Appeals Council was as

follows.
On July 10, 2014, Dr. Larry Thead wrote a “To Whom It May
Concern” letter indicating that he had recently begun treating
Jones for a ten-year history of seizures during which the

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seizures had never been under control (Tr. 409).

Seizure

activity had been witnessed in his clinic and Jones had begun
taking an anti-seizure medication, Dilantin, again.

Thead was

attempting to get an additional opinion from a neurologist.
Doctor went on to state the following:

The

“It is my opinion that

this patient’s seizures have not been under consistent control
and that he is currently totally disabled because of this” (Tr.
409).
On November 20, 2014, Dr. Sid Crosby wrote a “To Whom It
May Concern” letter, stating that he had examined Plaintiff once
and that he had a normal neurological exam though he had a
laceration to his forehead due to a recent seizure (Tr. 411).
On December 12, 2014, Dr. Diana C. Hengartner with the
University of South Alabama College of Medicine Department of
Neurology indicated that Jones had been having at least two-tothree seizures per week (Tr. 413-14).2

A recent hospitalization

had located the seizures in the left anterior temporal lobe;
Plaintiff was thought to be a good surgical candidate.

A brain

MRI showed left hippocampal sclerosis.
On March 13, 2015, Clinical Neuropsychologist Melissa Ogden
noted that a recent PET scan showed hypometabolic activity in
the left temporal lobe; she noted that apart from his seizures,

2Dr. Hengartner’s assessment and plan were reviewed and approved

by Associate Professor of Neurology, Dr. Juan Ochoa (Tr. 414).

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he was healthy (Tr. 415-17).

Jones reported earning Cs and Ds

in school “but denied any history of grade retention, learning
difficulties, enrollment in special education, or tutoring;” he
further reported no difficulties in managing all aspects of
independent daily living (Tr. 415).

Thought processes were

logical and goal directed; affect was appropriate.

Jones

underwent the Wechsler Abbreviated Scales of Intelligence
(hereinafter WASI) on which he scored a verbal IQ of 65, a
performance IQ of 99, and a full scale IQ of 79; he also
underwent several other tests.

The Neuropsychologist provided

the following statement about his test results:
Mr. Jones demonstrated cognitive
weakness in the areas of language skills,
with below expectation performances on tests
of vocabulary, verbal abstraction,
confrontation naming, and semantic verbal
fluency. His scores on other measures were
within expectation for his age and education
level, including his performances on
measures of verbal and visual memory. His
verbal memory performances were generally
low average to average and not significantly
discrepant from his visual memory scores.
The overall pattern of results is not
suggestive of lateralized temporal lobe
functions. However, he did demonstrate some
degree of language-related difficulty, which
may represent extra temporal dominant
hemisphere inefficiency. Given his strong
performances on some verbal memory measures
(assuming left hemisphere language
dominance), he may be at risk for a decline
in verbal memory capability following a left
temporal lobectomy.

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(Tr. 417).3
The Court notes that the Appeals Council is not required
“to give a detailed rationale for why each piece of new evidence
submitted to it does not change the ALJ’s decision.”

Mitchell

v. Commissioner of Social Security Administration, 771 F.3d 780,
784 (11th Cir. 2014).

However, the Council is required “to apply

the correct legal standards in performing its duties.”

Id.

The Appeals Council stated that it considered the new
evidence and found no basis for changing the ALJ’s decision (Tr.
2).

No other explanation was given.

The Court will examine the

new evidence to determine if that decision was error, starting
with the evidence related to Plaintiff’s seizures.
Dr. Thead’s letter stated that Jones was a recent patient
and that the Doctor had adjusted his medications (Tr. 409).

He

noted that someone in the office had seen seizure activity.
Thead indicated that Plaintiff was disabled.
Dr. Crosby’s letter stated that the one neurological exam
he had conducted was normal (Tr. 411).
Dr. Hengartner stated that the location of the seizures had
been established and noted that Jones had experienced five
seizures over the course of the previous month (Tr. 413).

3Plaintiff submitted other evidence to the Appeals Council that

was rejected as being unrelated to his state of disability as of April
23, 2014, the date of the ALJ’s decision (Tr. 2). Jones has made no
arguments regarding that evidence (see Doc. 15).

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Plaintiff had left hippocampal sclerosis.

The Doctor further

stated that surgery was indicated.
Jones has argued that the Appeals Council should have
remanded the action for a determination as to whether he had the
severe impairment of seizure disorder and whether it met the
requirements of Listing 11.03.

The requirements of Listing

11.03 are as follows:
Epilepsy-nonconvulsive epilepsy (petit
mal, psychomotor, or focal), documented by
detailed description of a typical seizure
pattern, including all associated phenomena;
occurring more frequently than once weekly
in spite of at least 3 months of prescribed
treatment. With alteration of awareness or
loss of consciousness and transient
postictal manifestations of unconventional
behavior or significant interference with
activity during the day.
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 11.03 (2015).
The Court first notes that the ALJ considered Plaintiff’s
seizure activity in her decision, although it was referenced as
pseudoseizure activity.

As such, it was not necessary for the

Appeals Council to remand the action back for the ALJ to
consider whether the impairment was a seizure disorder.

See

Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (“the
finding of any severe impairment, whether or not it qualified as
a disability and whether or not it results from a single severe
impairment or a combination of impairments that together qualify

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as severe, is enough to satisfy the requirement of step two” of
the sequential analysis).

The Court finds that the addition of

a specific diagnosis would not have changed the ALJ’s analysis
of the impairment.
The Court further finds that the new evidence does not
demonstrate that Jones meets the requirements of Listing 11.03
in that there is no detailed description in it of a typical
seizure; the ALJ already rejected the descriptions provided by
Plaintiff and his wife.

Furthermore, the evidence does not

demonstrate that Plaintiff was having the seizures in spite of
the fact that he has, for a period of at least three months,
followed a medical regimen.

The ALJ noted Jones’s non-

compliance with his prescribed medications.

Furthermore, Dr.

Thead’s suggestion that Plaintiff was disabled does not make it
so.
The Court finds no merit in Plaintiff’s claim that the
Appeals Council committed error in deciding not to remand the
action back to the ALJ for consideration of the evidence
regarding his seizures.

The Court cannot say that the ALJ’s

decision would be changed by the evidence submitted to the
Appeals Council.
The Court will now consider the evidence provided to the
Appeals Council regarding intellectual disability.
Neuropsychologist Ogden’s notes report Plaintiff’s

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statement that he denied having to repeat a grade, having
learning or attention difficulties, or being enrolled in special
education classes (Tr. 415-17).

Jones scored a Verbal IQ of 65

on the WASI, but the results of the multiple tests given were
generally in the average or low average range; Ogden said that
Plaintiff’s global intellectual skills were in the borderline
range.
Plaintiff asserts that evidence provided to the Appeals
Council could have been found to meet the requirements for
Listing 12.05C.

The introductory notes to Section 12.05 state

that “[i]ntellectual disability refers to a significantly
subaverage general intellectual functioning with deficits in
adaptive functioning 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).
The Court further notes that although the regulations
require that Plaintiff demonstrate he suffered “deficits in
adaptive behavior” before he turned twenty-two, 20 C.F.R. Part
404, Subpart P, Appendix 1, Listing 12.05 (2015), the Eleventh

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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.

Jones has provided an IQ score that, on its face, satisfies
one of the requirements of Listing 12.05C.

However, Plaintiff’s

activities of daily living would, most likely, provide the
rebuttal of any presumption that he suffered deficits in
adaptive functioning while growing up.

This is reasonable to

believe in light of the ALJ’s rejection of Plaintiff’s statement
of his symptoms in light of these activities (Tr. 32-33).
Furthermore, Jones’s ability to perform medium-exertion, skilled
work (see Tr. 35) would not, likely, go unnoticed by the ALJ in
his evaluation of Jones’s intellectual abilities.

The Court finds no merit in Plaintiff’s claim that the
Appeals Council committed error in deciding not to remand the
action back to the ALJ for consideration of the evidence
regarding his intellectual disability.

The Court cannot say

that the ALJ’s decision would be changed by the evidence

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submitted to the Appeals Council.
Jones raised two different claims in bringing this action.
Both 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 28th day of July, 2016.

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

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