Goree v. Colvin et al

Filing 24

MEMORANDUM OPINION AND ORDER entered. Upon consideration of theadministrative 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 in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 4/10/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CHARLES A. GOREE,

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

CIVIL ACTION 13-0450-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, 15).
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 (Doc. 23).
was waived in this action (Doc. 22).

Oral argument

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

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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).

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 most recent administrative hearing,
Plaintiff was forty-seven years old, had completed a high school
education (Tr. 39), and had previous work experience as a hand
packer, poultry worker, and tractor driver (Tr. 46).

In

claiming benefits, Goree alleges disability due to degenerative
disk disease of the lumbar, cervical, and thoracic spine, a pain
disorder, and mild mental retardation (Doc. 15 Fact Sheet).
The Plaintiff filed protective applications for disability
benefits and SSI on November 17, 2009 (Tr. 232-36; see also Tr.
20).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although
Goree could not return to his past relevant work, there were
specific light jobs that he could perform (Tr. 20-29).
Plaintiff requested review of the hearing decision (Tr. 14) by
the Appeals Council, but it was denied (Tr. 1-5).

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Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Goree alleges

(1) He meets the requirements of Listing 12.05C; and (2)

the ALJ improperly discounted his testimony (Doc. 15).
Defendant has responded to—and denies—these claims (Doc. 18).
The relevant evidence of record follows.
On February 12, 2008, Goree underwent an MRI of the
cervical spine that showed “a small central disc protrusion at
T1-2 which produce[d] mild anterior extradural impression and
appear[ed] to produce no neural impingement” (Tr. 341).

On

visits to the Marion Health Center, Plaintiff complained of back
and neck pain, radiating into his arm; he reported that
Amitriptyline1 helped the pain (Tr. 337-40).
Records from the Vaughn Regional Medical Center show that,
on August 21, 2008, Goree was admitted via the emergency room
after being struck in the head with a crowbar (Tr. 319-28).
There was no underlying skull fracture or evidence of
intracranial hemorrhage or focal intracranial mass (Tr. 327).

A

week later, Plaintiff returned to have a staple removed; he also
had complaints of continuing headaches and dizziness, though
they were relieved with his medications (Tr. 330).

Goree was

discharged to his own custody, ambulatory, and in no pain (Tr.

1Error!
 Main
 Document
 Only.Amitriptyline, marketed as Elavil,

is used to treat the symptoms of depression.
Reference 3163 (52nd ed. 1998).

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Physician's Desk

331).
On February 8, 2010, Goree was examined at the Selma Family
Medical Center for a consultative examination with complaints of
headaches (Tr. 351-55).

Plaintiff was noted to be in no acute

distress; motor strength was symmetrical with no obvious
weaknesses.

Superficial sensation was intact bilaterally to

light touch and pain; he was dexterous without ataxia or tremor.
Deep tendon reflexes were full and symmetric bilaterally while
gait was coordinated and smooth.

The examiner noted full

strength in the shoulders, elbows, wrists, hands, and fingers
bilaterally.

The cervical spine showed tenderness though there

was no instability or weakness; the thoracic spine was normal.
The thoracolumbar spine demonstrated decreased range of motion
(hereinafter ROM), though there was no pain or instability
noted; the lumbosacral spine also demonstrated decreased ROM and
elicited mild pain (Tr. 353).
On March 1, 2010, Psychologist Richard S. Reynolds examined
Goree who reported completing a twelfth grade education in
regular classes though he had to repeat the twelfth grade (Tr.
365-66).

The Psychologist noted that he was oriented in four

spheres, that thought content was logical, and that associations
were tight.

Recent memory was intact while remote memory was

fair; judgment, insight, and decision-making abilities appeared
intact.

It was Reynolds’s opinion that Goree’s “ability to

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understand, carryout, to remember instructions, and to respond
appropriately to supervision, co-workers, work pressures in a
work setting appear[ed] intact” (Tr. 366).
On June 21, 2010, Goree complained of pain in his
shoulders, back, and both arms for the prior month at the Marion
Health Center; there is no indication that any treatment was
given (Tr. 383).

On June 30, 2010, Dr. Jamil Aktar completed a

clinical assessment of pain in which he indicated that Goree
suffered from pain to an extent that it distracted him from
adequately performing his daily activities; physical exercise
would increase his pain to a degree that it would distract him
from his tasks or cause him to abandon them completely (Tr.
394).

Aktar also indicated that medication side effects would

cause some limitations for Plaintiff but would not create
serious problems.

The Doctor also completed a physical

capacities evaluation in which he indicated that Plaintiff was
capable of lifting and carrying five pounds occasionally and one
pound frequently; during an eight-hour work day, Goree could sit
and stand or walk for one hour each (Tr. 395).

He would be able

to use his fingers for fine manipulation occasionally and gross
manipulation rarely; Goree would never be able to use his arms
or legs for pushing and pulling movements and could never climb,
balance, bend, stoop, or reach.
On May 5, 2011, Psychologist Nina E. Tocci conducted an

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examination in which Goree denied that he had received any
mental health treatment; he stated that he had graduated from
high school in a regular curriculum (Tr. 396-98).

His affect

was appropriate, normal, and stable; he was oriented in four
spheres.

Plaintiff “demonstrated a fair fund of information and

comprehension;” he “demonstrated thought content appropriate to
mood and circumstances and a logical thought organization” (Tr.
397).

The Psychologist found that Goree demonstrated little

insight into his behavior; he appeared to be functioning within
the average range of intellectual ability.

Indicating that he

had a fair prognosis, Tocci stated the following:
Without objective information (e.g. WAIS;
WMS; MMPI) it is difficult to determine his
level of impairment (if any) and level of
sincerity of symptoms (i.e. malingering).
He appears to have the cognitive ability to
learn, perform, and complete moderate tasks
in a timely manner.
(Tr. 398).

On June 2, 2011, Psychologist Tocci completed a

Mental Medical Source Statement in which she indicated that
Goree’s impairments did not affect his ability to understand,
remember, and carry out instructions (Tr. 400-02).

She further

indicated that Plaintiff’s ability to interact appropriately
with the public, supervisors, and co-workers and respond
appropriately to usual work situations and to changes in a
routine work setting would not be affected by his impairments.

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On August 16, 2011, Psychologist Reynolds again examined
Goree who denied “ever seeking psychiatric or psychological
treatment of symptoms of mental illness” as he “didn’t think
[he] needed it” (Tr. 405; see generally Tr. 405-08).

Plaintiff

was in a euthymic mood but in no distress; the Psychologist
noted that there was “no evident treatment history to
substantiate symptoms of mental illness” (Tr. 406).

Goree

stated that he had graduated from high school, including some
special education classes.

On examination, Reynolds found

Plaintiff oriented in four spheres with logical thought content
and tight associations.

Recent memory was intact while remote

memory was judged to be fair; insight was shallow and concrete
while judgment appeared to be intact.

Goree took the WAIS-IV

and scored a Full Scale IQ of 63; this was noted to be in the
mild range of mental retardation.

The Psychologist thought that

these results were a valid estimate of his current intellectual
functioning.

Reynolds went on to note the following, however:

During this interview, Mr. Goree does
not present significant symptoms or history
of symptoms regarding mental illness. He
does reports [sic] feeling poorly and
occasionally sadness and crying episodes
during this interview. Reports are not
consistent with presentation. In my
opinion, symptoms presented are not
sufficient for diagnosis of mental illness.
In my opinion, Mr. Goree does not
demonstrate deficits in ability to
understand, carryout, remember instructions

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simple instructions, or make judgments on
simple work related decisions. He
demonstrates no deficits in ability to
understand complex instructions, carryout
complex instructions or make judgments on
complex work related decisions. I do not
see data supporting deficits in ability to
respond appropriately to the public,
supervisors, co workers, or usual work
situation and changes in a routine in a work
setting. Mr. Goree would be able to manage
awarded funds appropriately.
(Tr. 408).

Psychologist Reynolds also completed a Mental

Medical Source Statement in which he indicated that Goree had no
limitations in his ability to work (Tr. 409-11).
A report from the Marion Health Center on August 25, 2011
noted that Plaintiff complained of back pain for the prior week;
Tylenol #32 was prescribed (Tr. 414).
At the most recent evidentiary hearing, Goree testified
that he had quit work in 2007 because pain in his neck and back
had gotten bad; since then, lower back pain was so bad that he
could hardly move (Tr. 39-45).

The pain radiated into both

arms, but was worse on the left; movement made it worse.
Plaintiff rated his pain as nine on a ten-point scale;
sometimes, the pain was only a six.

He had to lie down

practically all day long because of it.

Goree testified that he

took special education classes in math and English and had to

2Error!
 Main
 Document
 Only.Tylenol with codeine is used “for

the relief of mild to moderately severe pain.”
Reference 2061-62 (52nd ed. 1998).

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Physician's Desk

repeat the twelfth grade to get his certificate.
This concludes the Court’s review of the medical evidence.
In bringing this action, Plaintiff first claims that he
meets the requirements of Listing 12.05C (Doc. 15, pp. 4-8).
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.

In his determination, the ALJ found that Goree had no
severe mental impairments (Tr. 22).

The ALJ faithfully reported

Psychologist Reynolds’ examination notes, but found his
conclusion that Plaintiff suffered from mental retardation to be
unsupported by his own findings (Tr. 26-27).

The ALJ

specifically noted that the Psychologist’s findings of no
limitations in the work place contradicted his diagnosis of
mental retardation (Tr. 27).

The Court notes that Reynolds, in

his summary of the examination, specifically stated the
following:

“In my opinion, symptoms presented are not

sufficient for diagnosis of mental illness” (Tr. 408).

This

conclusory statement is consistent with Psychologist Tocci’s
finding that Goree was “functioning within the average range of
intellectual ability” (Tr. 397).

The Court would further note

that although Plaintiff has achieved test results indicating
some mental retardation, his years of successful working belie
his claim that a mental impairment impedes him now in that
endeavor.

This claim is of no merit.

Goree has also claims that the ALJ improperly discounted
his testimony; the focus of the claim is that the ALJ provided
no analysis in finding Plaintiff’s testimony non-credible (Doc.

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15, pp. 8-11).

The standard by which the Plaintiff'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 (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

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(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) (2013).
In his determination, the ALJ found that Goree’s
impairments could cause the symptoms alleged, but not at the
intensity alleged (Tr. 25).

The ALJ went on to discredit the

physical capacities evaluation completed by Dr. Aktar as
unsupported by the objective evidence found in either his own
notes or the record as a whole (Tr. 26); Plaintiff has not
challenged this finding.

The Court would also note that

Plaintiff’s testimony regarding his education was inconsistent
with reports to his various doctors.

Furthermore, his lack of

treatment does not support his asserted claim of debilitating
impairments.

While the ALJ’s rejection of Goree’s testimony was

not the model of efficiency, the conclusion is no less supported
by the substantial evidence of record.
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

recommended that the Secretary's decision be AFFIRMED, see

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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 10th day of April, 2014.

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

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