Hollis v. Colvin

Filing 24

Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability and disability insurance benefits be AFFIRMED.. Signed by Magistrate Judge Sonja F. Bivins on 7/20/2015. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TONY HOLLIS,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 14-00268-B

ORDER
Plaintiff
judicial

review

Tony
of

Hollis
a

(hereinafter

final

decision

of

“Plaintiff”)
the

seeks

Commissioner

of

Social Security denying his claim for a period of disability and
disability

insurance

benefits

under

Title

Security Act, 42 U.S.C. §§ 401, et seq.

II

of

the

Social

On May 14, 2015, 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 a period of

disability
2011.

and

disability

(Tr. 157).

insurance

benefits

on

February

22,

Plaintiff alleged that he has been disabled

since December 15, 2009, due to “[two] ruptured discs in lower
back/fusion in lower back.” 1
not

allege

any

(Id. at 157, 161).

intellectual

limitations

in

Plaintiff did
his

disability

application, nor did he claim any intellectual limitations at
his hearing.

(Id. at 52-61, 161, 164).

Plaintiff’s
request,

he

applications

was

granted

were

an

denied

and

administrative

upon

timely

hearing

before

Administrative Law Judge Mary E. Helmer (hereinafter “ALJ”) on
December 18, 2012.

(Id. at 45, 78).

Plaintiff attended the

hearing with his counsel and provided testimony related to his
physical impairments.
appeared

at

the

(Id.).

hearing

A vocational expert (“VE”) also

and

provided

testimony.

(Id.).

Following the hearing on December 18, 2012, Plaintiff filed a
motion

requesting

that

the

ALJ

order

a

consultative

examination for the purpose of performing IQ testing.
236).

On

January

14,

2013,

the

1

ALJ

issued

an

mental
(Id. at

unfavorable

In his Disability Report dated March 7, 2011, which Plaintiff
completed himself, he was asked to list all physical and mental
conditions that limit his ability to work. Plaintiff responded,
“[two] ruptured discs in lower back/fusion in lower back.” (Tr.
161).
Plaintiff further responded that he has never sought
treatment for a mental condition.
(Id. at 164).
Also, when
asked at his hearing why he could no longer work, he stated that
his former employer asked him to lift things that he could not
lift. (Id. at 52).

2

decision finding that Plaintiff is not disabled.

In addition,

the ALJ denied Plaintiff’s request for a consultative mental
examination

on

the

grounds

that

there

was

no

evidence

that

Plaintiff was mentally retarded, and to the contrary, that the
evidence showed that Plaintiff’s adaptive functioning was well
above that of a person with mild mental retardation.
37-38, 40).
Appeals

(Id. at

On March 14, 2013, Plaintiff requested that the

Council

consider

a

report

obtained

from

Dr.

Donald

Blanton, Ph.D., related to a mental status evaluation and IQ
testing conducted by Dr. Blanton on February 12, 2013.
18-19).

The

Appeals

Council

denied

Plaintiff’s

(Id. at

request

for

review, finding that the report did not provide a basis for
changing the ALJ’s decision.

(Id. at 1-2).

Therefore, the

ALJ’s decision dated January 14, 2013, became the final decision
of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on May 14, 2015 (Doc. 21), 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).
II.

Issues on Appeal
1.

Whether the ALJ erred in failing to
fully and fairly develop the record by
denying
Plaintiff’s
motion
for
a
consultative
mental
examination
to
determine
Plaintiff’s
intellectual

3

functioning?
2.

Whether the Appeals Council erred in
failing to admit into the record the
report
of
Plaintiff’s
examining
psychologist,
Dr.
Donald
Blanton,
Ph.D.?

III. Factual Background
Plaintiff was born on February 20, 1965, and was fortyseven years of age at the time of his administrative hearing on
December 18, 2012.

(Tr. 157).

Plaintiff testified that he

dropped out of school after the eleventh grade.
231).

(Id. at 48,

Plaintiff’s school records reflect that he was enrolled

in regular classes while in school and that he repeated the
first and eleventh grades.

(Id. at 48-49, 231).

Plaintiff did

not pass the high school graduation examination and did not
receive a high school diploma.

(Id. at 48, 235).

Plaintiff testified that he cannot read a newspaper, and he
needed help filling out job applications.

(Id. at 55, 56-57).

He has a commercial driver’s license, which he obtained after
passing the oral commercial driving test.

Plaintiff failed the

written commercial driving test four times.

(Id. at 49-50).

According to Plaintiff’s Disability Report, he last worked
from 2007 to 2009 as a delivery truck driver for a welding
company.

Prior to that, he worked as a delivery truck driver

for a lumber company in 2006 and as a delivery truck driver for
a gas company

for approximately fourteen years from 1990 to

4

2004.2

(Id. at 45, 49-50, 162, 167).

Plaintiff also worked at a

truck rental company in 2007, washing and cleaning trucks.

(Id.

at 162).
Plaintiff testified that he quit working in December 2009
after having a motor vehicle accident.
could no longer

Plaintiff stated that he

perform the lifting requirements of his job

after the accident. (Id. at 51-52).

According to Plaintiff, as

a result of the accident, he underwent fusion surgery on his
back, physical therapy, and epidural injections for pain.
at 52-54).

(Id.

His current medications include amitriptyline (for

sleep), Fluoxetine (for nerves), and Hydrocodone and Tramadol
(for pain).

(Id. at 54, 58).

Plaintiff testified that he lives with his wife and three
children, that he sleeps approximately twelve to fifteen hours a
day, and that he cannot lift two pounds. 3

(Id. at 59-60).

In

his Function Report, Plaintiff stated that he can take care of
his personal needs such as feeding, shaving, and showering but
sometimes

needs

help

using

clothes.

(Id. at 189, 193).

the

toilet

and

putting

on

his

He walks every day and can walk

2

At the hearing, Plaintiff testified that he drove a truck for
the gas company for approximately twelve years and that his
responsibilities as a delivery truck driver for the gas company
included writing reports on how much gas he delivered each day.
(Tr. 49-50).

3

Upon further questioning, Plaintiff stated that he can lift a
gallon of milk, although it is painful. (Tr. 61).

5

seventy-five to one hundred yards.
not drive anymore.

(Id. at 56, 195).

He does

(Id. at 195).

Plaintiff stated that he can handle a checkbook and make
change; he does not need reminders to take care of his personal
needs or to take medicine; he can pay attention “pretty good;”
he is “fair” at following written and spoken instructions; he
finishes

what

he

starts

“sometimes;”

he

gets

along

with

authority figures “very well;” he has never been laid off from
work because of problems getting along with other people, but he
does not handle stress well.
IV.

(Id. at 194-98).

Analysis
A.

Standard of Review

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

is

a

determining

limited
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).

4

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.
4

must

be

Brown v.

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).
6

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

whether

substantial

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

Social

sequential

7

see

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 5

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since December
15, 2009, the alleged onset date, and that he has the severe
impairments

of

status

post

L5-S1

posterior

decompression

and

fusion for preoperative lumbar radiculopathy, degenerative disc
with

annular

spinal

tear

stenosis.

at

L5-S1,

(Tr.

lumbar

30).

The

5

spondylosis,

and

ALJ

found

further

lumbar
that

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
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)).

8

Plaintiff

does

not

have

an

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. at 33).
The

ALJ

concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light work, except that “he cannot operate foot controls with
the

lower

extremities;

scaffolds;

cannot

he

cannot

climb

crouch;

cannot

be

ladders,

exposed

to

ropes,

excessive

vibration, unprotected heights and hazardous

machinery.

work

complex

performed

instruction.”

by

claimant

(Id. at 34).

must

not

require

or

Any

written

The ALJ also determined that while

Plaintiff’s medically determinable impairments could reasonably
be

expected

to

produce

the

alleged

symptoms,

his

statements

concerning the intensity, persistence and limiting effects of
the alleged symptoms were not entirely credible for the reasons
explained in the decision.

(Id. at 37).

Given Plaintiff’s RFC, the ALJ found that Plaintiff is not
capable of performing his past work as a gas delivery truck
driver or as a delivery driver, both of which are classified as
semiskilled and medium.
testimony

of

a

VE,

(Id. at 39).
the

ALJ

However, utilizing the

concluded

that

considering

Plaintiff’s residual functional capacity for a range of light
work, as well as his age, education and work experience, there

9

are

also

other

jobs

existing

in

the

national

economy

that

Plaintiff is able to perform, such as “tagger,” “inspector,” and
“garment sorter,” all of which are classified as unskilled and
light.

(Id. at 39-40).

is not disabled.6

Thus, the ALJ concluded that Plaintiff

(Id. at 40).

As stated above, despite the fact that Plaintiff did not
raise the issue of mental retardation prior to his hearing, his
attorney did request a consultative mental examination after the
hearing.

(Id. at 236).

In her decision, the ALJ denied the

request and made the following relevant findings with respect to
Plaintiff’s alleged mental impairment:
Following
the
hearing,
Claimant’s
representative requested that I order a
consultative
examination
to
include
intelligence
and
achievement
testing,
alleging that he might meet Listing 12.05C
due to mental retardation and his physical
impairment
(Exhibit 14E).
As grounds, the
representative noted that Claimant repeated
first and eleventh grades and dropped out of
school before graduating.
Claimant also
testified
that
he
could
not
read
a
newspaper. He took the drivers license test
and the commercial driver’s license tests
several times before he passed them orally.
I did not order testing because there is no
evidence that Claimant is mentally retarded
6

Plaintiff does not take issue with the ALJ’s findings with
respect to his physical impairments. (Doc. 13 at 1). His only
claims in this case involve the ALJ’s findings with respect to
his alleged intellectual impairment, i.e., mental retardation.
(Id.).
Therefore, the Court’s discussion is limited to
Plaintiff’s alleged mental impairment only.

10

or that he has ever been diagnosed with
mental retardation. Claimant testified that
he was not ever placed in special education
classes.
While Claimant may have had
difficulty passing driver’s license tests,
he did obtain a commercial driver’s license
test
and
worked
in
that
field.
As
vocational expert testimony discussed below
establishes, Claimant has past relevant work
as a Delivery Driver and a Gas Delivery
Truck Driver.
Both jobs are semi-skilled.
He has been able to maintain a checking
account.
Claimant’s adaptive functioning
is well above that of a person with mild
mental retardation.
(Id. at 37-38).
As discussed above, following the ALJ’s determination on
January

14,

2013,

that

Plaintiff

is

not

disabled,

Plaintiff

submitted additional evidence to the Appeals Council consisting
of a mental evaluation report from Dr. Donald Blanton, Ph.D.,
dated February 12, 2013, reporting that Plaintiff obtained a
valid, Full Scale IQ Score of 67 on the WAIS-IV, placing him in
the mild range of mental retardation, and that he demonstrates
deficits in adaptive functioning manifested prior to age twentytwo.

(Id. at 21-23).

The Appeals Council denied Plaintiff’s

request for review on April 18, 2014, finding that the report
was obtained after the date of the ALJ’s decision and, thus, did
not provide a basis for changing the ALJ’s decision.

(Id. at 1-

2).
The

Court

now

considers

the

foregoing

record in this case and the issue on appeal.

11

in

light

of

the

1.

Issues
A. Whether the ALJ erred in failing to
fully and fairly develop the record
by denying Plaintiff’s motion for a
consultative mental examination to
determine Plaintiff’s intellectual
functioning?

In

this

case,

Plaintiff

claims

that

the

ALJ

erred

in

failing to fully and fairly develop the record regarding his
cognitive functioning.

(Doc. 13 at 1).

Specifically, Plaintiff

argues that the ALJ ignored his school records and his testimony
that he made poor grades throughout school, that he repeated the
first and eleventh grades, that he never passed the high school
graduation examination, and that he dropped out of high school
after the eleventh grade and that, based on that evidence, the
ALJ should have granted his request for a consultative mental
examination and IQ testing.
counters

that

the

ALJ

did

(Id. at 1-2).
not

err

in

The Commissioner

failing

to

order

a

consultative mental examination because no evidence suggested
that Plaintiff was mentally retarded; Plaintiff did not allege
in

the

application

process

or

at

his

hearing

that

he

was

mentally retarded; and Plaintiff’s work history included many
years of employment in semi-skilled positions. (Doc. 18 at 1-2).
Having carefully reviewed the record in this case, the Court
agrees that Plaintiff’s claim is without merit.

12

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

or

psychologist.”

Id.

(quoting 42 U.S.C. § 421(h) (internal quotation marks omitted).
Later, in Sneed v. Barnhart, 214 Fed. Appx. 883, 886 (11th Cir.

13

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.

Notwithstanding the foregoing, an ALJ is not required to
order

a

consultative

sufficient

evidence

examination
to

permit

where

the

the

ALJ’s

record

RFC

contains

determination.

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. 2007) (unpublished) (“the ALJ need not
order an additional consultative examination where the record
was

sufficient

for

a

decision.”).

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, the Commissioner correctly points out that
Plaintiff did not allege in his application process that he is
impaired as a result of mental retardation, nor did he or his
counsel assert at his administrative hearing that Plaintiff is
impaired as a result of mental retardation.

14

To the contrary,

Plaintiff stated only that he is disabled as a result of “[two]
ruptured discs in lower back/fusion in lower back” and that he
has never sought treatment for a mental condition.
164).

(Id. at 161,

Moreover, as noted above, when asked at his hearing why

he could no longer work, he stated only that his former employer
asked him to lift things that he could not lift.

(Id. at 52,

161).
Following his hearing, Plaintiff’s counsel filed a motion
for a consultative mental examination and IQ testing, which the
ALJ denied on the grounds that there was no diagnosis of mental
retardation in the record, nor was there

any other evidence

indicating the existence of a mental impairment.
236).
has

(Id. at 37-38,

The ALJ found, and the record confirms, that Plaintiff

an

extensive

obtained

a

work

history

commercial

in

driver’s

semi-skilled

license;

he

positions;

was

enrolled

he
in

regular classes in school; he is able to use a check book and
count money; he can read and write; he filed reports and used
technical knowledge or skills in his previous jobs at Welder
Supply Company and Campbell’s Truck Rental; he shops; he takes
care

of

most

reminders

to

of

his

take

personal

care

of

care

his

needs;

personal

he

does

needs

or

not

need

to

take

medicine; he reported no mental limitations to the Agency, only
issues
ability

related
to

pay

to

his

back

attention

is

problems;
“pretty

15

he

good;”

reported
he

is

that

his

“fair”

at

following written and spoken instructions; and he gets along
with authority figures “very well.”

(Id. at 37-38, 49-50, 55,

160, 182-83, 189, 193-98).
In addition, none of Plaintiff’s treating physicians ever
noted

a

mental

impairment

of

any

kind.

To

the

contrary,

Plaintiff’s orthopedic surgeon, Dr. Michael Davis, M.D., noted
that, during a discussion with Plaintiff concerning non-surgical
options for his back pain, Plaintiff “walked out and said he
wanted

another

opinion.”

Dr.

Davis’

notes

reflect

that

Plaintiff was an active participant in the discussion, that he
understood the options available to him, and that he was in
control of his treatment plan.

(Id. at 286).

Likewise, notes

from consultative physical examiner, Dr. Oluyinka Adediji, M.D.
(internal

medicine)

Plaintiff

was

dated

alert

and

March

20,

oriented,

2012,

that

indicate

his

that

interpersonal

behavior was socially appropriate, that there was no evidence of
psychomotor
processes,

disturbance,
and

thought

and

that

content

his

were

mood,

normal.

affect,
(Id.

thought
at

366).

Similarly, Plaintiff’s treatment records from Jackson Hospital
dated January 27, 2011, reflect that Plaintiff was negative for
any psychiatric problems.
The

foregoing

(Id. at 376).

evidence

supports

the

ALJ’s

denial

of

Plaintiff’s request for a consultative mental examination, and
it supports the ALJ’s determination that Plaintiff has the RFC

16

to perform a range of light work, with the noted restrictions.
(Id. at 34, 38).

The Court rejects Plaintiff’s argument that

the mere facts that he made poor grades in school, that he
failed the first and eleventh grades, that he failed the high
school

graduation

examination,

and

that

he

had

difficulty

passing his driving test indicates the existence of a mental
impairment, particularly given the substantial evidence in this
case that Plaintiff’s adaptive functioning is well above that of
a person with mild mental retardation.
Where, as here, the record contains sufficient evidence to
permit the ALJ’s RFC determination, 7 the ALJ is not required to
order a consultative mental examination.
at 1269.

See Ingram, 496 F.3d

Accordingly, Plaintiff’s claim that the ALJ erred in

failing to fully develop the evidence related to his alleged
mental retardation impairment is without merit.
B. Whether the Appeals Council erred in
failing to properly evaluate and
admit into the record the report of
Plaintiff’s examining psychologist,
Dr. Donald Blanton, Ph.D.?
Next, Plaintiff argues that the Appeals Council erred in
failing

to

Blanton’s

properly
mental

(Doc. 13 at 4).

consider

evaluation

and
report

admit
dated

into

the

February

record
12,

Dr.

2013.

In the report, Dr. Blanton diagnosed Plaintiff

7

As noted above, Plaintiff does not challenge the ALJ’s RFC with
respect to any of his physical impairments.

17

with mild mental retardation based on a Full Scale IQ score of
67 and found that Plaintiff had deficits in adaptive functioning
manifested prior to age 22.

(Tr. 22-23).

Plaintiff argues that

the Appeals Council erred when it found that the report did not
affect the decision about whether Plaintiff was disabled during
the relevant period in question because it was obtained after
the

date

of

the

ALJ’s

decision.

(Doc.

13

at

4).

The

Commissioner counters that any error by the Appeals Council in
failing to properly consider Dr. Blanton’s report is harmless
because nothing in the report would have changed the outcome in
this case.

(Doc. 18 at 10).

record,

Court

the

finds

that

Having carefully reviewed the
Dr.

Blanton’s

report

does

not

provide a basis for changing the ALJ’s decision in this case.
Therefore, any error by the Appeals Council in its evaluation of
Dr. Blanton’s report is harmless.
“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,

18

a

reviewing

renders

the

court

must

consider

whether

of

benefits

erroneous.”

denial

that

new
Id.

evidence
at

1262.

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

is

a

reasonable

possibility

administrative outcome.”

that

it

would

change

the

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

(llth Cir. 1986).
In this case, Plaintiff properly submitted the report from
Dr. Blanton to the Appeals Council as it was generated after the
ALJ’s

decision

dated

January

14,

2013.

In

the

report,

Dr.

Blanton stated that he conducted IQ testing on Plaintiff and
that Plaintiff received a Full Scale IQ score of 67, indicating
mild mental retardation.

(Id. at 22).

Dr. Blanton opined that

Plaintiff “has marked limitations that seriously interfere with
his ability to perform work-related activities on a day-to-day
basis

in

a

regular

work

setting

in

the

following

areas:

understand[ing] detailed or complex instructions, carry[ing] out
detailed

or

complex

instructions,

complex

instructions,

remember[ing]

respond[ing]

[to]

detailed

customary

or

work

pressures, us[ing] judgment in detailed or complex work-related
decisions,

maintain[ing]

attention

and

concentration

and

pace[][for] at least two hours, [and] maintain[ing] activities
of daily living.” (Id. at 23).

Dr. Blanton further opined that,

“[i]t is my opinion that [Plaintiff’s] mental retardation has
been

a

lifelong

condition

.

19

.

.”

and

that

Plaintiff

“demonstrates deficits in adaptive functioning manifested prior
to age 22 due to his mental retardation in the following areas:
communication,

work,

use

functional academic skills.”

of

community

resources,

[and]

(Id.).

At the outset, the Court notes that Plaintiff’s statement
that the Appeals Council failed to make Dr. Blanton’s report
part of the record is incorrect.

(See Tr. 21).

The report is

part of the record in this case.
Also, contrary to Plaintiff’s argument, the Appeals Council
did consider the report.

It simply determined that the report,

which was obtained after the ALJ’s decision, was not related to
the

period

in

question

relevant.

(Id. at 2).

the

disagrees

Court

and,

thus,

was

not

chronologically

Having reviewed the report in detail,

with

the

Appeals

Council

that

evidence is not probative of the period in question.

the

new

While the

report was generated one month after the ALJ’s decision, the IQ
testing and the opinions expressed in the report are relevant to
the Plaintiff’s intellectual abilities one month earlier.

Thus,

the Appeals Council erred in rejecting the report on that basis.
However, errors which do not prejudice the Plaintiff and which
would not change the disability determination are harmless.

See

generally Battle v. Astrue, 243 Fed. Appx. 514, 522 (11th Cir.
2007) (unpublished); Wright v. Barnhart, 153 Fed. Appx. 678, 684
(11th Cir. 2005).

20

In this case, in order for Plaintiff to meet Listing 12.05C
(mental retardation), he must present evidence of “[a] valid
verbal, performance or full scale IQ of 60-70 and a physical or
other mental impairment imposing an additional and significant
work-related

limitation

of

function.”

Subpart P, Appendix 1 § 12.05(C).

20

C.F.R.

Part

404,

In addition, he must satisfy

the “diagnostic description” of mental retardation in Listing
12.05 (the listing category for mental retardation/intellectual
disability), 8 which provides that mental retardation “refers to
significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the
developmental

period;

i.e.,

the

evidence

demonstrates

supports onset of the impairment before age 22.”

or

20 C.F.R. Part

404, Subpart P, Appendix 1, §§ 12.05.
Assuming
mental

or

a

valid

physical

IQ

score

impairment,

8

and

an

additional

Plaintiff

still

qualifying

cannot

meet

On August 1, 2013, the Social Security Administration amended
Listing 12.05 by replacing the words “mental retardation” with
“intellectual disability.”
See Hickel v. Commissioner of Soc.
Sec., 539 Fed. Appx. 980, 982 n.2 (11th Cir. 2013) (citing 78
Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404,
subpt. P, app. 1)).
“This change was made because the term
‘mental retardation’ has negative connotations, and has become
offensive to many people.
Id.
(citations and internal
quotation marks omitted). “The Social Security Administration
stated that the change does not affect the actual medical
definition of the disorder or available programs or services.”
Id. (citations and internal quotation marks omitted). As in
Hickel, this opinion uses the term “mental retardation” and
“intellectual disability” interchangeably.

21

Listing 12.05C where, as here, his IQ score is inconsistent with
the

substantial

record

evidence

activities, and behavior. 9

of

his

work

history,

daily

See Popp v. Heckler, 779 F.2d 1497,

9

In addressing the “adaptive functioning” aspect of Listing
12.05C, the Eleventh Circuit has sustained the rejection of
claims under this Listing where the claimant’s IQ score was
significantly inconsistent with his/her adaptive functioning.
For instance, in Perkins v. Commissioner, Soc. Sec. Admin., 553
Fed. Appx. 870 (llth Cir. 2014), the Eleventh Circuit upheld the
ALJ’s finding that Listing 12.05C was not met where the
plaintiff performed skilled jobs, including as a skilled cook,
managed other workers, and made contradictory claims regarding
his education and employment history.
Also, in Hickel v.
Commissioner, 539 Fed. Appx. 980, 984 (llth Cir. 2013), the
Eleventh Circuit held that the ALJ did not err where he
acknowledged that the claimant had a valid IQ score between 60
and 70, applied the presumption established by Hodges v.
Barnhart, 276 F. 3d 1265, 1268-69 (llth Cir. 2001), and found
that the presumption was rebutted by other evidence that showed
that
the
claimant
did
not
have
“deficits
in
adaptive
functioning.” In reaching that decision, the court noted that,
although the claimant had been enrolled in special education
classes, she worked part-time in a nursery, was a high school
graduate, prepared simple meals, dressed herself, drove herself
to work, attended church regularly, and socialized with friends.
Id. at 984-985. See also, Popp v. Heckler, 779 F.2d 1497, 14991500 (llth Cir. 1986)(affirming finding that Listing 12.05C was
not met where the plaintiff had worked skilled jobs, obtained a
college degree, and had exaggerated his deficits when examined);
White v. Colvin, 2015 U.S. Dist. LEXIS 28277, 2015 WL 1013117,
*4 (S.D. Ala. Mar. 9, 2015) (The ALJ properly found that the
plaintiff did not have significant limitations in adaptive
functions where the record reflected that, although the
plaintiff had been in special education classes, he lived alone,
maintained his financial affairs, and consistently worked at
several different jobs); Robinson v. Colvin, 2015 U.S. Dist.
LEXIS 43338, 2015 WL 1520431, *11 (S.D. Ala. Apr. 2, 2015)
(where the plaintiff lived independently without a highly
supportive living arrangement, cared for her personal needs, and
had a significant work history, the ALJ properly found that her
IQ score was inconsistent with the record evidence regarding her
daily activities); Johnson v. Colvin, 2014 U.S. Dist. LEXIS
13497, 2014 WL 413492, *4 (S.D. Ala. Feb. 3, 2014)(although the
22

1499-1500 (llth Cir. 1986).
conclusive

of

mental

Indeed, a valid IQ score is not

retardation

where

the

IQ

score

is

inconsistent with other record evidence regarding the claimant’s
daily

living

activities

and

behavior.

See

Perkins

v.

Commissioner, Soc. Sec. Admin., 553 Fed. Appx. 870, 873 (11th
Cir. 2014).
Moreover,

in

this

case,

Dr.

Blanton’s

opinion

that

Plaintiff has deficits in adaptive functioning is based on a
one-time examination 10 and is inconsistent with the substantial
record evidence in this case, as well as his own examination
findings

that

Plaintiff’s

“thoughts

and

conversations

were

logical;” his “[a]ssociations were intact; his “affect was very
flat but appropriate;” “[n]o confusion was noted;” he “was alert
ALJ never stated that the claimant failed to meet Listing
12.05C, the ALJ’s finding that the claimant had high adaptive
skills, in that he had the capacity to take care of his own
needs, perform activities of daily living, and had successfully
performed four different jobs since leaving high school, was
sufficient to support his decision that the claimant was not
mentally retarded); Lyons v. Astrue, 2009 U.S. Dist. LEXIS
128950 (M.D. Fla. May 24, 2009), adopted by 2009 U.S. Dist.
LEXIS 48535, 2009 WL 1657388 (June 10, 2009) (The ALJ’s finding
that the claimant did not meet Listing 12.05C was supported by
substantial evidence that demonstrated that the claimant had a
high school diploma, was not in special education classes,
completed his own social security forms, and had earnings from
1983 – 1990 between $13,696 and $18,408 per year).
10

As a general rule in the Eleventh Circuit, the opinion of a
one-time examiner is not entitled to great weight and may be
discredited by other evidence in the record.
See Crawford v.
Commissioner of Soc. Sec., 363 F.3d 1155, 1160-61 (11th Cir.
2004); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987).

23

and oriented to time[,] place[,] person[,] and situation;” and
“[h]is judgment was fair for work and financial type decisions.”
(Id. at 21-22).
Having determined that the new evidence presented to the
Appeals Council, i.e., Dr. Blanton’s February 12, 2013, mental
evaluation report, does not render the ALJ’s denial of benefits
erroneous, any error by the Appeals Council in its evaluation of
the

report

is

harmless

and

does

not

warrant

reversal.

Accordingly, Plaintiff’s claim must fail.
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 a
period

of

disability

and

disability

insurance

benefits

be

AFFIRMED.
DONE this 20th day of July, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

24