Terrell v. Colvin

Filing 23

Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 1/26/2015. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ANNIE TERRELL,

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

CIVIL ACTION NO. 13-00357-B

ORDER
Plaintiff

Annie

Terrell

(hereinafter

“Plaintiff”)

brings

this action seeking judicial review of a final decision of the
Commissioner
supplemental

of

Social

security

Security

income

under

denying
Title

Security Act, 42 U.S.C. §§ 1381, et seq.

her

XVI

of

claim
the

for

Social

On November 12, 2014,

the parties consented to have the undersigned conduct any and
all proceedings in this case.

(Doc. 20).

Thus, the action was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.

Upon careful consideration

of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.
I.

Procedural History
Plaintiff

protectively

filed

an

application

for

supplemental

security

income

on

July

29,

2010.

(Tr.

Plaintiff alleged that she had been disabled since
2010,

due

arthritis,

to

nerve

and

problems

high

blood

(anxiety

and

pressure.

panic

(Id.

155).

July 29,
disorder),

at

155,

159).

Plaintiff’s applications were denied and upon timely request,
she was granted an administrative hearing before Administrative
Law Judge Thomas M. Muth II (hereinafter “ALJ”) on September 21,
2011.

(Id. at 43).

Plaintiff attended the hearing with her

counsel and provided testimony related to her claims.
44).

A

medical

expert

and

a

vocational

expert

appeared at the hearing and provided testimony.

(Id. at

(“VE”)

also

(Id. at 55,

58).
On

November

25,

2011,

the

ALJ

issued

an

decision finding that Plaintiff is not disabled.
On

May

18,

2012,

and

June

4,

2012,

unfavorable
(Id. at 36).

Plaintiff

additional medical evidence to the Appeals Council.

submitted
The Appeals

Council considered said evidence before denying review on May
25, 2013.
dated

(Id. at 1-2, 5, 8, 514).

November

Commissioner.

25,

2011

Having

became

exhausted

the
her

Thus, the ALJ’s decision
final

decision

administrative

Plaintiff timely filed the present civil action.

of

the

remedies,

(Doc. 1).

The

parties waived oral argument (Doc. 19) and agree that this case
is now ripe for judicial review and is properly before this
Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

2

II.

Issues on Appeal
A.

Whether the ALJ erred in failing to
fully develop the evidence related to
Plaintiff’s mental retardation claim?

B.

Whether the ALJ erred in failing to
properly consider all the Plaintiff’s
impairments in posing a hypothetical to
the Vocational Expert?

C.

Whether the
failing
to
additional
Plaintiff?

Appeals Council erred in
adequately
examine
the
evidence
submitted
by

III. Factual Background
Plaintiff was born on March 23, 1966, and was forty-five
years

of

age

at

the

September 21, 2011.

time

of

her

(Tr. 43, 45).

administrative

hearing

on

Plaintiff testified that she

completed the twelfth grade in high school, and that she was
assigned special education classes.
from

high

school

Graduation Exam.

because

she

Plaintiff did not graduate

could

not

She did not obtain her GED.

pass

the

Alabama

(Id. at 45, 51).

Plaintiff testified that she last worked as a babysitter
from 2006 to 2009 and that she also worked for Alabama Catfish
in 2000 and 2002 as a packer and on the filet line.
46).

(Id. at 45-

She testified that she can no longer work because she has

3

a “nerve problem and back problems.”1

(Id. at 47).

Plaintiff reported that she lives with her four children,
ages 23, 19, 17, and 12.

(Id. at 49).

She handles her own

finances and banking and can count change; she cooks, performs
housekeeping duties (cleaning, laundry, and ironing) and grocery
shops, with some assistance from her daughter.
68).
to

(Id. at 49, 167-

In her Function Report, Plaintiff stated that she is able

finish

what

she

starts;

she

follows

written

instructions

“well;” she follows spoken instructions “well;” and she gets
along with authority figures “well.”

(Id. at 170-71).

Plaintiff testified that her average day begins around 6:30
a.m. when she wakes her son for school and begins her housework.
(Id.

at

(Id.).
house

50).

She

frequently

rests

and

watches

television.

Plaintiff testified that she does not go out of the
often

because

of

her

church on a regular basis.
spells about twice a week.

nerves,

although

she

does

go

to

She stated that she has crying
(Id. at 53-54, 169).

Plaintiff has

never had a driver’s license and has never learned to drive
because of problems with her nerves.
Plaintiff

listed

her

(Id. at 52).

medications

1

as

Citalopram

(for

Plaintiff stated that she had to stop babysitting in 2009
because it “was getting on [her] nerves.” (Tr. 47). Plaintiff
also testified that she has arthritis in her lower back, which
causes her pain every day. (Id. at 47). She takes Naproxen and
Ultram for pain, which helps “a little bit.” (Id. at 48).

4

anxiety),

Diclofenac

(for

arthritis),

Hyzan

(for

high

blood

pressure and fluid retention), and Propranolol (for high blood
pressure).

(Tr.

medications.
IV.

162).

She

has

no

side

effects

from

her

(Id.).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

2

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

2

whether

substantial

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
5

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 3

3

C.F.R.

for

20 C.F.R.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
6

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since July 29,
2010,

the

alleged

onset

date,

and

that

she

has

the

severe

impairments of degenerative joint disease of the lumbar spine,
carpal

tunnel

syndrome,

osteoarthritis,

obesity,

anxiety

disorder, panic disorder, and right knee and right shoulder pain
of uncertain etiology.
Plaintiff

does

not

(Tr. 27).

have

an

The ALJ further found that

impairment

or

combination

of

impairments that meets or medically equals any of the listed
impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix
1.

(Id.).
The

ALJ

concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform light work,
“except [that] she can frequently lift and/or carry 10 pounds
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

7

and

occasionally

frequently

use

lift

her

and/or

right

carry

upper

20

pounds[;]

extremity

for

[s]he

pushing

can

and/or

pulling; she can occasionally use her left upper extremity for
pushing and/or pulling; she can use her right lower extremity
for occasional pushing and/or pulling; and she can use her left
lower extremity for frequent pushing and/or pulling[;] [she] can
frequently

balance,

occasionally

stoop,

occasionally

kneel,

occasionally crouch, occasionally crawl, and occasionally climb
ramps

and

stairs[;]

[she]

cannot

climb

ladders,

ropes,

or

scaffolds[;] [s]he can frequently reach, bilaterally[;] [s]he
can frequently handle with the right hand, occasionally handle
with the left hand, perform unlimited fingering with the right
hand and perform frequent fingering with the left hand[;] [s]he
can perform unlimited feeling[;] [s]he is limited to work that
requires no more than occasional exposure to extreme heat and
occasional

exposure

to

extreme

cold,

and

that

avoids

all

exposure to unprotected heights and dangerous machinery[;] [she]
can perform simple, routine tasks involving no more than simple,
short

instructions

and

simple

work-related

decisions

with

infrequent and gradually introduced work place changes; she can
occasionally interact with the public and occasionally interact
with supervisors[;] [and] [s]he should be exposed to only a
small

number

of

familiar

coworkers

but

she

can

sustain

concentration and attention for two-hour periods with customary

8

breaks.”

(Id. at 30-31).

The ALJ also determined that while

Plaintiff’s medically determinable impairments could reasonably
be

expected

to

produce

the

alleged

symptoms,

her

statements

concerning the intensity, persistence and limiting effects of
the alleged symptoms were not credible to the extent that they
were inconsistent with the RFC.
Given

Plaintiff’s

RFC,

(Id. at 31).

the

ALJ

found

that

Plaintiff

is

unable to perform her past work as a day care worker/babysitter
or hand packer.

(Id. at 34).

However, utilizing the testimony

of a VE, the ALJ concluded that considering Plaintiff’s residual
functional capacity for a range of light work, as well as her
age,

education

existing

in

the

and

work

national

experience,
economy

that

there

are

Plaintiff

other
is

jobs

able

to

perform, such as “cleaner,” “machine tender,” and “assembler,”
all of which are classified as light and unskilled.
63).

(Id. at 35,

Thus, the ALJ concluded that Plaintiff is not disabled.

(Id.).
In determining that Plaintiff did not meet any Listing, the
ALJ made the following relevant findings:
The
severity
of
the
claimant’s
mental
impairments,
considered
singly
and
in
combination, do not meet or medically equal
the criteria of listing 12.06. In making
this finding, I have considered whether the
“paragraph B” criteria are satisfied. . . .
In activities of daily living, the claimant
has mild restriction. The claimant initially

9

reported that she attends to her personal
needs
independently,
enjoys
watching
television programs for two hours at a time,
prepares her own and, twice weekly, family
meals,
regularly
shops
for
groceries,
clothing, and other personal and family
needs, and leaves her home independently.
The claimant testified at her hearing in
September 2011 to providing a single-parent
home for her four children and performing
some household chores. Treatment records
from Cahaba Center for Mental Health show
that the claimant socializes with family
members,
participates
in
holidays,
and
maintains a household with three minor
children and one adult child. See Exhibits
4E; 11F; Hearing Testimony.
In social functioning, the claimant has
moderate difficulties. The claimant reported
that despite getting “nervous” around “too
many” people, she continues to shop in
public stores on a regular basis, requiring
only occasional help from her daughter.
Treatment records from Cahaba Center for
Mental Health show that in May 2010, the
claimant
reported
improvement
with
compliance to her medication regimen and
only experiencing “anxiety” when she was
upset.
In June 2010, the claimant reported
experiencing only occasional panic attacks
and said they were occurring “less often.”
She reported in August 2010 that she left
her home almost every day riding in a car
with someone else. She said she attended
church and needed no reminders or someone to
accompany her. She said she had no problems
getting along with family, friends, or
neighbors
and
provided
no
information
regarding changes in her social activities
since our condition began. See Exhibits 4E;
11F, Hearing Testimony.
With regard to concentration, persistence or
pace,
the
claimant
has
moderate
difficulties.
The
claimant
initially
indicated that her condition did not affect

10

her memory or ability to complete tasks,
concentrate,
understand,
or
follow
instructions
(Exhibit
4E
page
6).
Nevertheless, she testified to problems in
this area when she became nervous. She said
she was not able to pass the “exit exam”
from high school, which prevented her from
graduating with her class, or successfully
learn to drive a car even with taking a
driver’s education course.
Linda Duke,
Ph.D., consulting medical expert with the
Alabama
Disability
Determination
Service
opined in September 2010 that the claimant
was moderately limited in her ability to
carry out detailed instructions and maintain
attention and concentration for extended
periods (Exhibit 16F). The claimant reported
that she had no problems managing the
financial affairs of her family as well as
that there has been no change in her ability
to handle money since her condition began
(Exhibit 4E).
As for episodes of decompensation, the
claimant has experienced no episodes of
decompensation, which have been of extended
duration. The claimant has required neither
inpatient hospital treatment nor ongoing
and/or intensive mental health counseling or
other treatment modalities.
Because the claimant’s mental impairments do
not cause at least two “marked” limitations
or one “marked” limitation and “repeated”
episodes of decompensation, each of extended
duration, the “paragraph B” criteria are not
satisfied.
(Tr. 29-30). 4

Further, in assessing Plaintiff’s RFC, the ALJ

4

The ALJ further found that the “paragraph C” criteria were not
met, noting that “[t]he claimant testified that she grocery
shops for her family, regularly shops in stores, and babysits
outside of her own home for a friend.
In August 2010, the
claimant reported that she leaves her house almost every day
11

made the following relevant findings:
The claimant initially alleged her ability
to perform work activity on a sustained
basis was limited because of a “nerve
problem”
“arthritis,”
and
“high
blood
pressure.”
She said that, while her
condition did not cause her to make changes
in her work activity, she stopped working on
July 29, 2010 because of her condition(s). .
. .
Treatment records from Cahaba Center for
Mental Health show that the claimant carries
the
diagnoses
of
panic
disorder
and
generalized
anxiety
disorder
features
(Exhibit 11 F).
These records further show
that the claimant reported improvement with
compliance to an appropriate medication
regimen. There is no indication of adverse
medication side effects and Timothy S.
Baltz, M.D., the claimant’s psychiatrist,
offered no opinion regarding functional
restrictions.
As for the opinion evidence, . . . [t]he
mental RFC as expressed in the assessment by
Dr. Duke is consistent with the other
credible medical evidence of record and,
therefore, merits significant weight.
See
Exhibit 16F.
The opinion expressed in the PRT form by Dr.
Duke is consistent with the other credible
medical evidence of record and, therefore,
also merits significant weight. See Exhibit
12F.
The opinion of Dr. Robidoux concerning the
claimant’s limitations as expressed in his
examination
narrative
report,
which
is
identified as Exhibit 13F, is consistent
with the described examination findings and
riding in a car and that she is able to leave her home without
having anyone to accompany her.” (Tr. 30).

12

other
treatment
evidence.
Therefore,
significant weight is assigned to this
opinion, as well.
Although
the
claimant
has
described
restricted daily activities, two factors
weigh against considering these allegations
to be strong evidence in favor of finding
the claimant disabled. First, allegedly
limited
daily
activities
cannot
be
objectively verified with any reasonable
degree of certainty. Secondly, even if the
claimant’s daily activities were truly as
limited as alleged, it is difficult to
attribute that degree of limitation to the
claimant’s medical condition, as opposed to
other volitional reasons, in view of the
relatively weak medical evidence and other
factors discussed in this decision. . . .
In
sum,
the
above
residual
functional
capacity assessment is supported by opinion
evidence, the claimant’s reported daily
activities,
radiographic
evidence,
the
conservative nature of treatment offered,
the
claimant’s
favorable
response
to
conservative treatment measures, and the
lack of functional restrictions by any
treating and/or examining medical source.
(Tr. 30-34).
Following

the

ALJ’s

determination

on

November

25,

2011,

that Plaintiff was not disabled, Plaintiff submitted additional
evidence to the Appeals Council consisting of medical records
from Bryan Whitfield Memorial Hospital dated April 12, 2012,
through April 20, 2012, related to treatment for her right knee
and medical records from the Holifield Clinic dated January 14,
2003, through November 8, 2011, documenting telephone encounters
between Plaintiff and staff at the Holifield

13

Clinic.

(Id. at

9-15, 514-18).

The Appeals Council found that the additional

evidence did not affect the decision about whether Plaintiff was
disabled on or before

November 25, 2011, and denied review.

(Id. at 2).
The

Court

now

considers

the

foregoing

in

light

of

the

record in this case and the issues on appeal.
1.

Issues
a. Whether the ALJ erred in failing to
fully develop the evidence related
to Plaintiff’s mental retardation
claim?

Plaintiff argues that the ALJ erred in failing to consider
her mental retardation in determining whether she is disabled
and

that

he

erred

in

failing

to

fully

develop

the

evidence

related to this alleged impairment because he did not order a
consultative mental examination and I.Q. testing.
2-7).

(Doc. 13 at

Plaintiff maintains that there was evidence before the

ALJ indicating that she is mentally retarded, such as: evidence
that she was in special education classes in school; a report
dated April 3, 2006, from psychologist Dr. Richard S. Reynolds,
Ph.D.,

a

consultative

examiner

in

Plaintiff’s

previous

application for benefits, who noted that Plaintiff had “mental
retardation

per

history”

(id.

at

2;

Tr.

322-24);

and

the

testimony of Dr. Calvin R. Johns, M.D., the medical expert at
Plaintiff’s

hearing,

that

Plaintiff

14

“has

some

psychiatric

disorders, anxiety, mental retardation, [and] panic attacks. . .
.”

(Tr.

56).

Plaintiff

argues

that

because

of

the

ALJ’s

failure to consider her mental retardation and failure to order
a consultative mental examination and I.Q. testing to determine
the degree of her mental retardation impairment, his decision is
not supported by substantial evidence.

(Doc. 13 at 4-7).

The Commissioner counters that the ALJ properly declined to
consider

Plaintiff’s

alleged

mental

retardation

because Plaintiff never alleged before the ALJ

impairment

that she was

disabled as a result of mental retardation 5 and because, in any
event, there is insufficient evidence to establish that mental
retardation
case.

was

a

medically

(Doc. 17 at 6, 8).

determinable

impairment

in

this

The Commissioner further counters

that Dr. Reynolds’ notation in his report that Plaintiff had
“mental retardation per history” is not a diagnosis but, rather,
is

merely

evidenced

a
by

recitation
Dr.

of

Reynolds’

Plaintiff’s
opinion

reported

that

history,

Plaintiff’s

status is normal and intact and that she is employable.
7).

Likewise,

the

Commissioner

maintains

that

Dr.

as

mental
(Id. at
Johns’

statement at the hearing that Plaintiff’s impairments included

5

It appears that Plaintiff asserted mental retardation as a
basis for her disability claim for the first time before the
Appeals Council.
(Tr. 18-19).
However, Plaintiff did not
submit
any
additional
evidence
related
to
this
alleged
impairment.

15

mental

retardation

was

merely

a

reference

to

Dr.

Reynolds’

reported history, as there is no diagnosis of mental retardation
or even a suggestion of mental retardation anywhere else in the
record.

(Id. at 8).

Having carefully reviewed the record in

this case, the Court finds no error with regard to this claim.
As

a

preliminary

matter,

the

Court

notes

that

the

Commissioner is correct that Plaintiff, who was represented by
an

attorney,

did

not

allege

in

her

application

that

she

is

impaired as a result of mental retardation, nor did she assert
before

the

ALJ

retardation.

that

she

is

impaired

as

a

result

of

mental

In her application, Plaintiff stated that she is

disabled as a result of a nerve problem, arthritis, and high
blood

pressure.

(Id.

testified

that

she

problems.

(Id. at 47).

at

cannot

159).
work

At

her

because

hearing,
of

nerve

Plaintiff
and

back

After Dr. Johns, the medical expert at

the hearing, listed mental retardation as one of Plaintiff’s
psychological disorders (along with anxiety and panic attacks),
Plaintiff’s attorney asked him generally about whether he had an
opinion about Plaintiff’s limitations based on her physical and
mental impairments, and Dr. Johns declined to offer any opinion
related

to

her

mental

impairments.

(Id.

at

57,

130-31).

Despite Dr. Johns’ reference to “mental retardation,” neither
Plaintiff

nor

her

attorney

asserted

that

she

was

mentally

retarded or that she was basing her claim for disability on

16

mental retardation.

Consequently, it is not surprising that the

ALJ’s opinion is silent on the subject of mental retardation.
It is well established that a hearing before an ALJ in
social security cases is inquisitorial and not adversarial.

A

claimant bears the burden of proving disability and of producing
evidence in support of her claim, while the ALJ has “a basic
duty to develop a full and fair record.”

Ellison v. Barnhart,

355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see also
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269
(11th

Cir.

2007).

This

duty

to

develop

the

record

whether or not the claimant is represented by counsel.

exists

Brown v.

Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
42 U.S.C. 421(h) provides that “in any case where there is
evidence which indicates the existence of a mental impairment,”
a determination that a claimant is not disabled “shall be made
only if the Commissioner . . . has made every reasonable effort
to ensure that a qualified psychiatrist or psychologist” has
offered an opinion or reviewed the record.
McCall

v.

Bowen,

846

F.2d

1317,

1320

Id.

(11th

Cir.

Likewise, in
1988),

the

Eleventh Circuit stated that where there is evidence indicating
the

existence

of

a

mental

impairment,

the

Commissioner

may

determine that the claimant is not under a disability only if
the Commissioner has made “every reasonable effort to obtain the
opinion

of

a

qualified

psychiatrist

17

or

psychologist.”

Id.

(quoting 42 U.S.C. § 421(h) (internal quotation marks omitted).
Later, in Sneed v. Barnhart, 214 F. Appx. 883, 886 (11th Cir.
2006) (unpublished), a panel of the Eleventh Circuit stated that
“McCall interprets § 421(h) [to] require[] an ALJ to order a
psychological consultation where there is evidence of a mental
impairment.”

Id.

However, the ALJ is not required to order a consultative
examination

where

the

record

contains

permit the ALJ’s RFC determination.

sufficient

evidence

to

Ingram, 496 F.3d at 1269

(“The administrative law judge has a duty to develop the record
where appropriate but is not required to order a consultative
examination as long as the record contains sufficient evidence
for

the

administrative

law

judge

to

make

an

informed

decision.”); see also Good v. Astrue, 240 Fed. Appx. 399, 404
(11th

Cir.

additional

2007)

(unpublished)

consultative

(“the

examination

sufficient for a decision.”).

ALJ

need

where

not

the

order

record

an
was

Furthermore, “an administrative

law judge is under no obligation to investigate a claim not
presented at the time of the application for benefits and not
offered at the hearing as a basis for disability.”

Street v.

Barnhart, 133 Fed. Appx. 621, 627 (11th Cir. 2005).
In this case, Plaintiff’s claim fails for several reasons.
First, as stated, Plaintiff did not allege in her application or
at

the

hearing

that

she

is

disabled

18

as

a

result

of

mental

retardation.

Thus,

the

ALJ

was

under

no

obligation

to

investigate that alleged impairment.

See Street, 133 Fed. Appx.

at

did

627

(11th

Cir.

2005)

(“Street

not

list

any

mental

impairment or intellectual functioning issues in his application
for SSI benefits, nor did he testify at his hearing that he
suffered from any intellectual or mental impairments that would
prevent him from working.

This failure alone could dispose of

his

been

claim,

as

it

has

persuasively

held

that

an

administrative law judge is under no obligation to investigate a
claim not presented at the time of the application for benefits
and not offered at the hearing as a basis for disability.”)
(citations and internal quotation marks omitted); see also 20
C.F.R. § 416.912(c) (the burden is on the claimant to provide
medical evidence showing that he or she has an impairment and
showing how severe the impairment is during the time of alleged
disability).
Moreover, even if Plaintiff had alleged mental retardation
in

her

application

evidence
case.

supporting

or
a

at

the

finding

hearing,
of

mental

there

is

no

retardation

medical
in

this

Thus, the ALJ had no duty to develop the record with

regard to this alleged impairment.

In order to be considered

for the purposes of disability, an impairment “must result from
anatomical, physiological, or psychological abnormalities which
can be shown by medically acceptable clinical and laboratory

19

diagnostic
mental

techniques.”

impairment

must

20

C.F.R.

be

§

416.908.

established

by

“A

physical

medical

or

evidence

consisting of signs, symptoms, and laboratory findings, not only
by [a claimant’s] statement of symptoms.” Id.
While
education

it

is

classes

undisputed
in

that

school,

that

Plaintiff
she

had

was

in

failing

special
or

near

failing grades in most subjects throughout high school, that she
failed the math, language, and reading portions of the Alabama
High School Graduation Exam, and that Dr. Reynolds noted in his
consultative

report

dated

April

3,

2006,

that

Plaintiff

had

“mental retardation per history” 6 (id. at 151-52, 322), no where
in the record is there a diagnosis of mental retardation, nor is
there medical evidence of any kind indicating that Plaintiff
actually suffers from mental retardation.

Indeed, as discussed

further herein, not even Plaintiff’s treating psychiatrist, Dr.
Timothy Baltz, M.D., ever diagnosed her with mental retardation,
nor did Dr. Baltz ever indicate the possibility that Plaintiff
suffers from mental retardation.
Given

the

fact

that

(Id. at 441-55).

Plaintiff

did

not

allege

mental

retardation in her application or at the hearing and given the

6

Dr. Reynolds conducted a consultative examination of Plaintiff
in April 2006 in connection with a prior application for
disability.
Dr. Reynolds’ single statement noting “mental
retardation by history” is the only reference to this condition
anywhere in the Plaintiff’s medical records.

20

dearth

of

evidence

retardation,

the

indicating

ALJ

had

no

the

existence

obligation

to

of

mental

consider

this

impairment or to order a consultative mental examination under
42

U.S.C.

421(h)

to

alleged impairment. 7

develop

the

record

with

regard

to

this

See Robinson v. Astrue, 2009 WL 700414, *5

(M.D. Ga. Mar. 13, 2009) aff'd, 365 Fed. Appx. 993 (11th Cir.
2010) (“As the Regulations state, the burden of proving that [a
claimant] is disabled is on the Claimant. . . . That means that
[i]n an action seeking disability benefits, the burden is upon
the claimant to demonstrate existence of a disability as defined
by the Social Security Act. . . . It is, therefore, not the
responsibility of the ALJ to analyze each and every impairment
listed by the claimant in her medical records to determine if
that impairment causes or contributes to a claimant’s inability
to work. It is the sole responsibility of the claimant to do so.
To require that the ALJ address every impairment mentioned in a
claimant’s

medical

records

to

determine

its

severity

would

remove the burden from the Claimant and place it squarely on the
7

With respect to Plaintiff’s claim that the ALJ erred in failing
to order I.Q. testing, Plaintiff is correct that standardized
intelligence tests are required in order determine whether a
claimant meets certain mental retardation listings, such as
Listing 12.05C.
See 20 C.F.R., Pt. 404, subpt. P, App. 1, §
12.00D(6)(b).
However, no such testing was required in this
case because the record simply does not contain any credible
evidence of mental retardation that met the threshold criteria
of
being
a
medically
determinable
impairment
under
the
regulations.

21

shoulders

of

the

Commissioner.”)

(citations

and

internal

quotation marks omitted).
In addition, even if Plaintiff’s alleged mental retardation
was a medically determinable impairment in this case, the record
contains the 2006 consultative report of Dr. Richard Reynolds,
Ph.D., in which he found that, despite Plaintiff’s purported
“mental

retardation

per

history,”

her

essentially normal and intact, and she

mental

status

was employable.

was
Dr.

Reynolds noted in his report that Plaintiff had been in special
education classes in school, and he indicated that her school
records should be used to assist in determining her cognitive
function.

(Id. at 322-24).

Notwithstanding, upon examining

Plaintiff, he concluded that her mental status was essentially
normal, with the exception that her mood was “nervous.”
323).

(Id. at

He found that her “[t]hought associations were tight;”

her “[t]hought content was logical;” her “affect was appropriate
to content of thought and conversation;” and her “[j]udgment,
insight, and decision-making abilities appear intact for level
of intellectual functioning.”
evaluator’s

opinion

the

(Id.).

claimant’s

He concluded: “In this
ability

to

understand,

carryout, to remember instructions, and to respond appropriately
to

supervision,

setting

is

co

intact.

workers,
Ms.

[and]

Terrell

work

pressures

reports

some

anxiety, but appears employable.” (Id. at 324).

22

in

a

symptoms

work
of

In addition to Dr. Reynolds’ opinions, the record contains
the treatment notes of Plaintiff’s treating psychiatrist, Dr.
Baltz, who treated Plaintiff from April 2008 to June 2010 for
panic

disorder

document

that

and

anxiety.

Plaintiff

did

Dr.
not

Baltz’s

graduate

treatment
from

high

notes
school

because she was unable to pass the exit examination and that she
quit

her

job

because

of

anxiety.

(Id. at

444,

447).

Dr.

Baltz’s treatment notes further reflect that Plaintiff was a
single mom, with four children at home, and a limited income,
and that she suffered from panic disorder and anxiety. 8 (Id. at
444-50).

Nowhere in Dr. Baltz’s treatment notes is there any

reference to mental retardation, nor is there any indication
that Plaintiff’s panic disorder and anxiety were disabling in
nature.

(Id. at 441-55).

Dr. Baltz treated Plaintiff’s panic

8

Dr. Baltz regularly assigned Plaintiff a GAF of 60. (Tr. 44654). GAF (Global Assessment of Functioning) is a numeric scale
(0 through 100) used by mental health clinicians that measures a
patient’s
overall
level
of
psychological,
social,
and
occupational functioning on a hypothetical continuum.
A GAF
score of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
job).
A GAF score of 51-60 suggests 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).
A GAF score of 61-70 is indicative of mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy,
or theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships.
See
http://www.gafscore. com.

23

disorder and anxiety with medication, 9 and his treatment notes
consistently

reflect

improvement

in

Plaintiff’s

condition.

(Id.).
In addition to evidence provided by Dr. Reynolds and Dr.
Baltz,

the

record

contains

Psychiatric

Review

Technique

the
form

reviewer, Dr. Linda Duke, Ph.D.

Mental

RFC

completed

assessment
by

State

and

Agency

On September 8, 2010, Dr. Duke

completed the Psychiatric Review Technique form and opined that
Plaintiff had only “mild” restrictions in activities of daily
living,

“moderate”

difficulties

in

maintaining

social

functioning and in maintaining concentration, persistence, or
pace, and no episodes of decompensation.

(Id. at 466).

In her

Mental RFC assessment, Dr. Duke likewise indicated no more than
“moderate”
remember,
maintain

limitations
and

carry

attention

in
out

and

Plaintiff’s
detailed

ability

to

instructions,

concentration

for

understand,
ability

extended

to

periods,

ability to complete a normal work day and work week without
interruptions from psychologically based symptoms, ability to
perform at a consistent pace, ability to interact appropriately
with

the

general

public,

ability

to

accept

instructions

and

respond appropriately to criticism from supervisors, and ability
to respond appropriately to changes in the work setting.

(Id.

9

(Tr.

Plaintiff reported no side effects from her medications.
446-54).

24

at 477-78).

Dr. Duke opined that Plaintiff has the ability to

understand,

remember,

and

carry

out

short

and

simple

instructions and that she can attend and concentrate for two
hour periods.10

(Id. at 479).

The Eleventh Circuit has held that an ALJ is “required to
consider the opinions of non-examining state agency medical and
psychological
physicians

and

consultants

because

psychologists

who

Security disability evaluation.’”

they
are

‘are
also

highly
experts

Milner v. Barnhart,

qualified
in

Social

275 Fed.

Appx. 947, 948 (11th Cir. 2008) (unpublished) (citing 20 C.F.R.
§ 404.1527(f)(2)(i)).

“The ALJ may rely on opinions of non-

10

The record also contains a Psychiatric Review Technique and
Mental
RFC
assessment
forms
completed
by
State
Agency
psychologist Dr. Larry Dennis, Ph.D. on
June 26, 2008.
(Tr.
421-37).
Although the ALJ did not rely on Dr. Dennis’
assessments, which were completed in connection with Plaintiff’s
prior application for benefits, Plaintiff argues in her brief
that the ALJ should have relied on Dr. Dennis’ statement that
she could work for only “two hours over [an] eight hour day”
(id. at 437) and that the ALJ should have interpreted that
statement to mean that she could only work for a total of two
hours in an eight hour work day.
Having reviewed Dr. Dennis’
assessments at length, the Court finds that the reasonable
interpretation of Dr. Dennis’ statement is that Plaintiff could
work for two hour intervals in an eight hour work day.
This
interpretation is consistent with Dr. Dennis’ overall findings
and conclusions, as well as the remaining record evidence in
this case.
(Id. at 437). Moreover, Plaintiff’s interpretation
of Dr. Dennis’ opinion is inconsistent with the findings of her
examining sources, Dr. Reynolds and Dr. Baltz, and thus could
not be relied upon by the ALJ in any event.
See Milner v.
Barnhart,
275
Fed.
Appx.
947,
948
(11th
Cir.
2008)
(unpublished) (“The ALJ may rely on opinions of non-examining
sources when they do not conflict with those of examining
sources.”).

25

examining

sources

when

examining sources.”

they

do

not

conflict

with

those

of

Id. (citing Edwards v. Sullivan, 937 F.2d

580, 584-85 (11th Cir. 1991)).

In this case, the opinions of

Dr. Duke do not conflict with the opinions of any examining
sources.

Thus,

the

significant weight.

ALJ

properly

(Tr. 33).

afforded

those

opinions

Based on the evidence discussed

above, the ALJ complied with his duty under 42 U.S.C. § 421(h)
to make “every reasonable effort to ensure that a qualified
psychiatrist
Plaintiff’s

or

psychologist,”

mental

offered

impairments

an

opinion

(including

her

on

alleged

all

of

mental

retardation) or reviewed the record related to all of her mental
impairments before determining that Plaintiff was not disabled.
Having

reviewed

the

record

at

length,

the

undersigned

further finds that the ALJ’s mental RFC assessment in this case
is

supported

by

substantial

evidence.

In

addition

to

the

evidence discussed above, Plaintiff testified at her hearing and
stated

in

her

Disability

Report

that

she

worked

for

a

fish

processing factory as a packer and on the filet line in 2000 and
2002 until she quit because of nerve problems, arthritis, and
high blood pressure.
reported that she
handle

a

savings

(Id. at 45-47, 159).

In addition, she

can read, write, pay bills, count change,
account,

and

use

a

check

book;

she

cooks,

performs housekeeping (cleaning, laundry, and ironing) and shops
for groceries with assistance from her daughter. (Id. at 49,

26

158, 167-68).

She also reported that she is able to finish what

she starts; she follows written instructions “well;” she follows
spoken instructions “well;” and she gets along with authority
figures “well.”

(Id. at 170-71).

This evidence, along with the

opinion evidence discussed above, supports the ALJ’s mental RFC
assessment that Plaintiff can perform

a range of light

work

limited to “simple, routine tasks involving no more than simple,
short

instructions

and

infrequent

and

occasional

interaction

simple

gradually

work-related

introduced
with

the

work
public

decisions
place
and

with

changes;”
occasional

interaction with supervisors; exposure to only a small number of
familiar

coworkers;

and

requiring

her

only

to

sustain

concentration and attention for two-hour periods with customary
breaks.

(Id. at 31).

In sum, the ALJ’s decision reflects that he had before him
sufficient evidence upon which to make his RFC determination,
that he thoroughly examined all of the record evidence, and that
his determination that Plaintiff can perform a range of light
work, with the stated restrictions, is supported by substantial
evidence.

Indeed, there is no evidence suggesting limitations

in excess of those in the RFC.

Accordingly, Plaintiff’s claims

that the ALJ erred in failing to fully develop the evidence
related to her alleged mental retardation impairment and that

27

the

ALJ’s

RFC

assessment

is

not

supported

by

substantial

evidence are without merit.
b. Whether the ALJ erred in failing to
properly consider all of Plaintiff’s
impairments in posing a hypothetical
to the Vocational Expert?
Plaintiff argues that the vocational expert’s testimony is
not

supported

hypothetical

by

substantial

question

did

evidence

not

because

account

impairments, namely, mental retardation.

for

the

all

ALJ’s

of

her

(Doc. 13 at 7).

The

Commissioner counters that the ALJ was not required to include
any

limitations

in

his

hypothetical

question

that

were

not

supported by the record, such as her alleged mental retardation.
(Doc. 17 at 11).
“In order for a VE’s testimony to constitute substantial
evidence,

the

ALJ

must

pose

a

hypothetical

question

which

comprises all of the claimant’s impairments.”

Moreno v. Astrue,

366

(citing

Fed.

Appx.

23,

29

(11th

Cir.

2010)

Vega

v.

Commissioner of Soc. Sec., 265 F.3d 1214, 1220 (11th Cir. 2001).
“However, the ALJ is not required to include findings in the
hypothetical that the ALJ has found to be unsupported.”

Id.

(citations omitted) (“The ALJ did not err by failing to include
[the claimant’s] subjective symptoms in his hypothetical to the
VE because the ALJ was not required to include limitations that
it found to be unsupported.”); see also Stremba v. Barnhart, 171

28

Fed. Appx. 936, 939 (3d Cir. 2006) (“‘all impairments’ means
only those that are medically established. . . . Limitations
that are medically supported but are also contradicted by other
evidence in the record may or may not be found credible. . . .
Of course, credibility determinations are to be made by the
ALJ.”)

(citing

20

CFR

§

404.1527)

(citations

and

internal

quotation marks omitted).
Having already determined, for the reasons set forth above
with respect to Issue One, that a finding of mental retardation
is unsupported by the record in this case, and to the contrary,
that Plaintiff’s claim of mental retardation is contradicted by
other credible evidence in the record, the ALJ did not err in
failing to pose a hypothetical to the VE which included such
limitations.11

Therefore, Plaintiff’s claim is without merit.
c. Whether the Appeals Council erred in
failing to adequately examine the

11

The Court further notes, as the Eleventh Circuit noted in
Street, 133 Fed. Appx. at 627-28, that this alleged error, i.e.,
posing an inadequate hypothetical question to the VE, could
easily have been corrected at the hearing if Plaintiff or her
attorney had put the ALJ on notice of the deficiency, if indeed
one existed based on the record evidence. As in Street,
Plaintiff failed to do that and now seeks to have this Court
reverse and remand despite the fact that, whatever the evidence
of Plaintiff’s alleged mental retardation, that evidence existed
at the time of the hearing.
As discussed above, Plaintiff
failed to present sufficient evidence to the ALJ that would have
put him on notice of this alleged mental limitation on her
ability to function.
Therefore, the ALJ’s question properly
cited the limitations that Plaintiff faced based on the record
evidence and the testimony at her hearing.

29

additional
Plaintiff?

evidence

submitted

by

Last, Plaintiff argues that the Appeals Council failed to
adequately examine the additional evidence that she submitted
after the ALJ issued his decision on November 25, 2011.
13 at 8).

(Doc.

Plaintiff argues that the new evidence, namely, an

MRI of her right knee taken on April 20, 2012, is not cumulative
and should have been considered by the Appeals Council because
it explains the origin of her right knee pain, which the ALJ
found to be of “uncertain etiology.” (Tr. 27; Doc. 13 at 9-11).
According to Plaintiff, the MRI “may well have persuaded the ALJ
in this case to reverse his decision.” 12

(Doc. 13 at 10; Tr. 8-

16).
The Commissioner counters that the new evidence related to
the April 20, 2012, MRI of Plaintiff’s right knee is immaterial
and was properly rejected by the Appeals Council because it does
not relate to the period in question. 13

(Doc. 17 at 12).

The

Commissioner further argues that the new evidence, in any event,
12

As stated above, the record also shows that Plaintiff
submitted records to the Appeals Council from the Holifield
Clinic dated January 14, 2003, through November 8, 2011, which
appear to document telephone conversations with Plaintiff
regarding prescription refills, treatment plans, etc. (Tr. 51518). Plaintiff makes no argument related to these records.

13

The Appeals Council found that the new evidence related to a
time period after the ALJ had decided the case and, thus, did
not affect the ALJ’s decision about whether Plaintiff was
disabled during the period in question. (Tr. 2).

30

does not undermine the ALJ’s finding of no disability.

Having

carefully reviewed the record in this case, the Court agrees
that the Appeals Council did not err in finding that Plaintiff’s
new evidence, namely, the April 20, 2012, MRI of Plaintiff’s
right

knee,

did

not

provide

a

basis

for

changing

the

ALJ’s

decision.
“With a few exceptions, the claimant is allowed to present
new evidence at each stage of [the] administrative process.”
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1261
(11th

Cir.

2007).

“The

Appeals

Council

must

consider

new,

material, and chronologically relevant evidence and must review
the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently
of record.’” Id. (quoting 20 C.F.R. § 404.970(b)). “[W]hen a
claimant properly presents new evidence to the Appeals Council,
a

reviewing

renders

the

court
denial

must

consider

whether

that

of

benefits

erroneous.”

new
Id.

evidence
at

1262.

Evidence is material if it is “relevant and probative so that
there

is

a

reasonable

administrative outcome.”

possibility

that

it

would

change

the

Caulder v. Bowen, 791 F. 2d 872, 877

(llth Cir. 1986).
In this case, Plaintiff properly submitted the April 20,
2012, MRI to the Appeals Council, as it was generated after the
ALJ’s decision dated November 25, 2011.

31

As Plaintiff points

out,

the

anterior
edema”

MRI

shows

cruciate

in

the

a

“[q]uestionable

ligament”

right

(“ACL”)

knee.

(Id.

partial

and
at

“a

11)

tear

small

of

the

amount

(emphasis

of

added).

According to Plaintiff, this evidence offers an explanation for
her right knee pain during the period in question and, thus, it
warranted review by the Appeals Council.
Setting aside the facts that the MRI in question was taken
five

months

after

the

ALJ’s

decision

and

shows

only

a

“questionable” partial tear of Plaintiff’s ACL (id.), the record
reflects that another MRI of Plaintiff’s right knee was taken in
June 2011, five months before the ALJ’s decision, in response to
Plaintiff’s contemporaneous complaints of knee pain.
indicated

that

Plaintiff’s

anterior

cruciate

ligament

“probably intact” and that her knee was normal.
505).

That MRI
was

(Id. at 501,

This evidence makes it unlikely that the questionable,

partial tear in Plaintiff’s ACL, revealed in the later MRI,
explains the origin of Plaintiff’s knee pain during the period
in question.
That being said, even assuming that the April 2012 MRI was
probative

of

the

period

in

question

and

did

provide

an

explanation of the source of Plaintiff’s right knee pain during
the period in question, Plaintiff has failed to establish
reasonable
changed

the

possibility

that

administrative

the

April

outcome

32

had

2012
the

MRI

would

Appeals

a

have

Council

granted review.
the

record

Indeed, nothing in the MRI or anywhere else in

suggests

that

Plaintiff’s

right

knee

pain

is

disabling.14
As

the

ALJ

found,

consultative

physician,

Dr.

Stephen

Robidoux, M.D., examined Plaintiff on September 13, 2010, and
found no limitations resulting from the problems with her knee.
(Id. at 473-74).

Dr. Robidoux noted that Plaintiff was “in no

acute distress with normal unaided gait.”

(Id. at 472).

Her

physical examination revealed normal flexion and extension and
full range of motion of both knees.

(Id. at 473).

Dr. Robidoux

concluded: “Ms. Terrell presents with the common problems most
people face in the[ir] 40’s.
obesity.

Hypertension, osteoarthritis and

. . . She is able to do all the activities of daily

living and on physical exam I find no limitations for people her
age to sitting, standing, walking, lifting, carrying, handling
objects,

using

hand

talking or travel.”

and

foot

controls,

climbing,

listening,

(Id.).

Likewise, Plaintiff’s treating physician, Dr. Gerald Hodge,
M.D.,

who

treated

Plaintiff

from

2007

limitations related to her right knee.
14

to

2011,

noted

no

(Id. at 358-60, 482-

The ALJ did find Plaintiff’s right knee pain to be a severe
impairment and accounted for limitations caused by this
impairment in his RFC assessment, finding that Plaintiff could
only use her right lower extremity for pushing and pulling
occasionally and could only occasionally stoop, kneel, crouch,
crawl, and climb ramps and stairs. (Tr. 27, 30).

33

507).

Thus, even if the Appeals Council had granted review,

there is no reasonable possibility that the April 2012 MRI would
have changed the administrative outcome.

Therefore, Plaintiff’s

claim is without merit.
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 26th day of January, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

34