McIntosh v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered.. Upon consideration of 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, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 12/18/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
KENNETH McINTOSH,

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

CIVIL ACTION 13-0296-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, 14).
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. 19).
argument was waived in this action (Doc. 20).

Oral

Upon

consideration of 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
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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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-five years old, had completed a high school education (Tr.
65), and had previous work experience as a forklift driver,
overhead crane operator, and box spring builder (Tr. 58).

In

claiming benefits, McIntosh alleges disability due to diabetes,
degenerative disc disease of the cervical spine, diminished
visual acuity, and mild mental retardation (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on March 22, 2011 (Tr. 139-45; see also Tr. 23).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that McIntosh was capable of
performing his past relevant work (Tr. 23-36).

Plaintiff

requested review of the hearing decision (Tr. 19) by the Appeals
Council, but it was denied (Tr. 7-9).

Following the submission

of newly-submitted evidence, the Appeals Council set aside its
earlier decision, considered the new information, and, again,

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denied Plaintiff’s request to review the ALJ’s decision (Tr. 15).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, McIntosh

(1) The Appeals Council did not properly consider

newly-submitted evidence; and (2) the ALJ erred in rejecting the
opinion of an examining neuropsychologist (Doc. 14).

Defendant

has responded to—and denies—these claims (Doc. 15).
Plaintiff has claimed that the Appeals Council did not
properly consider newly-submitted evidence.

McIntosh refers to

evidence provided by treating physician, M. J. Fitz-Gerald (Doc.
14, pp. 9-11; see Tr. 297-316).

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);1 see also 20 C.F.R. § 404.1527 (2013).

It is

further noted that "[a] reviewing court is limited to [the
certified] record [of all of the evidence formally considered by
the Secretary] in examining the evidence."

Cherry v. Heckler,

1The Eleventh Circuit, in the en banc decision Bonner v.

City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted
as precedent decisions of the former Fifth Circuit rendered prior
to October 1, 1981.

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760 F.2d 1186, 1193 (11th Cir. 1985).

However, “new evidence

first submitted to the Appeals Council is part of the
administrative record that goes to the district court for review
when the Appeals Council accepts the case for review as well as
when the Council denies review.”

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).

Under

Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed
to consider, if such a claim is made, whether the Appeals
Council properly considered the newly-submitted evidence in
light of the ALJ’s decision.

To make that determination, the

Court considers whether the claimant “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."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
In examining the action at hand, the Court notes that the
Appeals Council denied review of the additional evidence (Tr. 15).

So the Court will examine the newly-submitted evidence and

make a determination as to whether—or not—it meets the
requirements of Caulder.
On November 13, 2012, Dr. Maurice J. Fitz-Gerald examined

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McIntosh for numbness in his left arm and pain in the left side
of his neck and shoulder; he also suffered from diabetes and
hypertension (Tr. 309-12).

The doctor’s notes indicate that

Plaintiff had been involved in a motor vehicle accident two
weeks earlier, causing neck pain, increased by head movement and
lying down, that was radiating into the shoulder and down the
arm; the pain, rated as ten on a ten-point scale, caused him
anxiety, sleeplessness, and difficulty with fine manipulation.
On examination, Fitz-Gerald noted that there was no decrease in
suppleness in the neck though there was tenderness when
Plaintiff turned his neck.

There were cervical spine

abnormalities, including tenderness on palpation, muscle spasm,
numbness, and pain elicited by motion.

The doctor’s assessment

was hypertension, type one diabetes mellitus, cervicalgia and
shoulder pain due to a motor vehicle accident; he prescribed
Lortab.2

On November 30, the doctor’s examination results were,

essentially, the same as they had been previously; additionally,
Fitz-Gerald noted neck pain was elicited by motion (Tr. 303-06).
On December 28, examination and assessment results were
consistent with previous reports; McIntosh received a Toradol3

2Error! 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).
3
Toradol 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).

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injection and another prescription for Lortab (Tr. 299-302).

On

that same date, Dr. Fitz-Gerald completed a check-off box form
indicating that Plaintiff could not “perform sustained work on a
regular and continuing basis, i.e., 8 hours a day, for 5 days a
week, or an equivalent work schedule” and could not “maintain
attention, concentration or pace for periods of at least two
hours” (Tr. 298).
The Court finds that the three-prong standard has not been
met here because there is little probability that the new
evidence would change the ALJ’s determination.

The main thrust

of the evidence concerns injuries McIntosh sustained from a
motor vehicle accident that occurred after the ALJ’s decision
was rendered.

That being the case, it does not relate to any of

the evidence considered by the ALJ.

The other evidence provided

by the doctor, not detailed herein, relates to routine lab
findings that are cumulative to evidence before the ALJ.
Therefore, the Court finds that the newly-submitted evidence
does not satisfy the Caulder requirements and that the Appeals
Council did not err in denying review of the ALJ’s
determination.
Plaintiff next claims that the ALJ erred in rejecting the
opinion of an examining neuropsychologist.
the conclusions of John R. Goff.

McIntosh refers to

The Court notes that a

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component of Plaintiff’s argument, though not raised as a
separate claim, is that, according to Goff’s conclusions, the
ALJ improperly determined that he was not mentally retarded
under Listing 12.05C.
The Court notes that 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 (2013).

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 (2013).
The Court 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 (2013), 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

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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.

On July 19, 2012, Neuropsychologist John R. Goff examined
McIntosh (Tr. 269-76).

He first summarized the medical records

that had been made available to him; the Neuropsychologist then
summarized McIntosh’s personal history, noting that he had never
been treated for any mental or emotional problems.

Goff noted

that McIntosh’s discourse was logical and coherent; he was
depressed, but denied suicidal ideation.

Plaintiff was oriented

in all spheres; his logical memory for verbal material was very
poor.

He underwent several different tests; the validity

indicators reflected straightforward performance.

On the

Wechsler Adult Intelligence Scale (WAIS-IV), McIntosh obtained a
full scale IQ score of 65, falling within the mildly retarded
range of psychometric intelligence; the Neuropsychologist noted
that this was similar to his score of 64 on the Short Form Test
of Academic Ability, taken when he was in high school.

Goff

noted that the score on the General Ability Index, a component
of the WAIS-IV, fell between borderline intellectual functioning
and mild mental retardation.

On the Reitan-Indiana Aphasia

Screening Test, Plaintiff had difficulty reading a sentence at
the second grade level and could not read at the fourth grade
level at all and could not perform simple math calculations.

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On

the Wide Range Achievement Test (WRAT-IV), McIntosh performed
math, spelling, and reading at the third grade, beginning second
grade, and mid-first grade levels, respectively; the reading
score made McIntosh functionally illiterate.

Goff noted that

standardized test scores from the tenth grade revealed a reading
score at the beginning second grade level while math and
spelling scores were at the fifth grade level.

The

Neuropsychologist noted minor indications for anxiety, but,
otherwise, found no indications for psychological issues.
diagnosed Plaintiff to be mildly mentally retarded.

Goff

He went on

to note the following:
During this examination he had
difficulty understanding, following carrying
out and remembering all but the simplest of
instructions. He would be seen as mistake
prone I think and rather slow by
supervisors, co-workers and others. He
obviously has physical problems which
interfere substantially with his ability to
deal with the stresses and pressures of the
workplace.
(Tr. 273).

The Neuropsychologist also completed a mental

medical source opinion form in which he indicated that McIntosh
was markedly limited in his ability to understand, remember, and
carry out simple, detailed, or complex instructions, deal with
changes in a routine work setting, and use judgment in detailed
or complex work-related decisions; he also indicated that

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Plaintiff would be extremely limited in his ability to respond
to customary work pressures and maintain attention,
concentration, or pace for periods of at least two hours (Tr.
275-76).

Goff found that these were lifelong restrictions.

In his determination, the ALJ summarized all of the medical
evidence of record but found that “Goff’s diagnosis of mental
retardation and his accompanying medical source statement
reflecting marked to extreme limitations are inconsistent with
the record as a whole” (Tr. 29).

The ALJ did not discuss—or

dispute—the IQ score requirement to meet Listing 12.05C, but
found that he did not meet the other requirements.
Specifically, the ALJ found that he did not demonstrate
significant subaverage general intellectual functioning
manifested during the developmental period.

As support for this

conclusion, the ALJ noted that McIntosh had graduated from high
school and had not repeated any grades or undergone special
education classes in doing so; the ALJ found that this
demonstrated that Plaintiff’s “intellectual functioning during
the developmental period was greater than could be expected of a
mentally retarded individual” (Tr. 29).

He further noted that

“[w]hile the claimant alleged that he [was] unable to read and
write, he admitted at the hearing that he [had been] able to
take and pass written examinations up through high school so
that he could graduate” (Tr. 29).

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The ALJ went on to find that McIntosh had not demonstrated
any deficits in adaptive behavior that were manifest before he
was twenty-two years old (Tr. 29).

The ALJ found that Plaintiff

had not demonstrated deficits in communication, self-care, home
living, social/interpersonal skills, use of community resources,
self-direction, work, leisure, health, or safety during his
developmental years; he also found that he had “not conclusively
establish[ed] deficits in functional academic skills” during
that period (Tr. 30).

The ALJ went on to find no limitations in

McIntosh’s activities of daily living, social functioning, or
concentration, persistence, or pace; there had been no episodes
of decompensation (Tr. 30).

The ALJ went on to point out that

Plaintiff had worked successfully for many years.
The Court finds substantial support for the ALJ’s rejection
of Neuropsychologist Goff’s conclusions.

McIntosh has correctly

pointed out that Hodges held “that there is a presumption that
mental retardation is a condition that remains constant
throughout life” and “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.”

However, the Court

finds that the ALJ has rebutted those presumptions.

Although

Plaintiff appears to have satisfied one of the requirements of
12.05C, he has not demonstrated all of them.

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The Court agrees

with the ALJ’s conclusion that the marked and extreme
limitations indicated by Goff are not supported by McIntosh’s
twenty-three-year work history, a history that included
supervising five other employees in one of his jobs (Tr. 59,
176).

It is further noted that Plaintiff did not quit working

because of his impairments, but because his employer laid him
off along with a large percentage of other workers (Tr. 58).
Though McIntosh has demonstrated diminished intellectual
functioning, the evidence does not support the limitations found
by Goff.
Plaintiff has 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 18th day of December, 2013.

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

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