Ravizee v. Colvin

Filing 27

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record, the memoranda of the parties, and oral argument, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 6/30/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TRACY RAVIZEE,

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

CIVIL ACTION 14-0412-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security ruling
denying claims for disability insurance benefits and Supplemental
Security Income (hereinafter SSI) (Docs. 1, 14).

The parties filed

written consent and this action has been referred to the undersigned
Magistrate Judge to conduct all proceedings and order judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 26).
Oral argument was heard on June 29, 2015.

After considering the

administrative record, the memoranda of the parties, and oral
argument, 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
1

substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), that must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "the decision under review be
supported by evidence sufficient to justify a reasoning mind in
accepting it; it is more than a scintilla, but less than a
preponderance."

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir.

1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D. Md.
1982).
At the time of the administrative hearing, Plaintiff was
thirty-nine years old, had completed a high school special
education curriculum (Tr. 44),1 and had previous work experience
as a construction worker II and a chain offbearer (Tr. 69-70).
In claiming benefits, Plaintiff alleges disability due to
arthritis, obesity, poor vision, and mild mental retardation
(Doc. 13).
Ravizee filed protective applications for disability
benefits and SSI on November 2, 2010, asserting a disability
onset date of November 22, 2008 (Tr. 24, 145-57).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)

1

Ravizee received a certification of completion, but did not earn

2

who determined that although he could not perform his past
relevant work, there were specific medium exertion jobs that
Ravizee could perform (Tr. 24-36).

Plaintiff requested review

of the hearing decision (Tr. 14-20) by the Appeals Council, but
it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Ravizee

alleges that the ALJ erred in (1) rejecting the opinion of the
only examining psychologist; and (2) determining that he did not
meet the requirements of Listing 12.05C (Doc. 14, pp. 8-9).
Defendant has responded to—and denies—these claims (Doc. 17).
The relevant evidence of record follows.2
Records from Linden High School show that Plaintiff
completed classwork through the twelfth grade in a special
education curriculum (Tr. 218).

He failed the Graduation Exam

four times, but was presented with a certificate of attendance.
On February 1, 2011, Dr. Stephen J. Robidoux performed a
consultative physical examination of Ravizee who complained of
problems with his legs, neck pain, and stiffness and numbness in

a degree (Tr. 44, 218; see Doc. 14, p. 2).
2
The records from Bryan Whitfield Memorial Hospital (Tr. 243-59)
and Dr. Ronnie Chu (Tr. 260-63) pre-date Plaintiff’s alleged onset
date of November 22, 2008. Furthermore, they are not cited as support
for Ravizee’s assertions of disability in this action (see Docs. 13-

3

his left arm; he had lost his glasses (Tr. 229-32).

The Doctor

noted that Plaintiff was in no acute distress with normal, heel
and toe walking, normal tendon gait, and that he was able to
squat and rise.

Ravizee had full range of motion (hereinafter

ROM) in his neck, knees, hips, feet, shoulders, elbows, wrists,
and fingers; he had normal grip as well as fine and gross
manipulation.

Robidoux diagnosed mild degenerative arthritis

and poor right eye vision; the Doctor went on to find that
Ravizee had no limitations in his ability to sit, stand, walk,
run, lift, carry, bend, stoop, handle objects, use hand and foot
controls, climb, talk, listen, or travel.
On May 23, 2012, Dr. Harold A. Hatcher performed an eye
exam and found that Plaintiff’s best-corrected vision was 20/200
in the right eye and 20/40 in the left eye, both near and at a
distance (Tr. 235-36, 240-42).

Ravizee had no useful binocular

vision and his depth perception was only fair; he had amblyopia3
in the right eye and hyperopia.4

Hatcher noted that Plaintiff

should avoid situations requiring excellent binocular vision.
On August 20, 2012, Psychologist John R. Goff examined
14).

Therefore, they will not be reviewed herein.
Amblyopia, sometimes called “lazy eye,” describes when the
vision in one eye is reduced because it and the brain are not working
together properly. https://www.nei.nih.gov/health/amblyopia
4
Hyperopia, or farsightedness, is caused by a refractive error in
the eye where distant objects may be more clearly seen than nearby
3

4

Ravizee, using evidence that included school records and a work
history report; Plaintiff stated that he had never been treated
for mental or emotional difficulties (Tr. 264-69).

Goff found

Ravizee’s discourse to be rapid and circumstantial; he could
recite the alphabet and count backwards from twenty.

The

Psychologist administered the Victoria Symptom Validity Test and
determined that Plaintiff’s performance was incompatible with
malingering.

Ravizee underwent the Wechsler Adult Intelligence

Scale (WAIS-IV), scoring a verbal comprehension of 70, a
perceptual reasoning of 79, a working memory of 69, and
processing speed of 71; his full scale IQ score was 67, placing
him in the mildly retarded range.

The verbal comprehension,

perceptual reasoning, and processing speed indices were
borderline scores while the working memory index fell within the
mildly retarded range; the general ability index was 72, falling
toward the lower end of the borderline range.

The WAIS block

design subscale score, assessing visual motor problem solving
skills, was higher than expected.

The Reitan-Indiana Screening

test demonstrated fairly adequate drawings, readable
handwriting, and an ability to perform simple mathematical
calculations on paper—though not in his head.

objects.

The Wide Range

https://www.nei.nih.gov/health/errors/hyperopia

5

Achievement Test (WRAT-IV) revealed Plaintiff’s ability to read
and spell at the mid-fifth-grade level and perform math at the
end-of-second-grade level; these findings indicated marginal
functional literacy, but an inability to perform adequate
mathematical transactions daily.

The Psychologist noted some

validity issues with Ravizee’s Personality Assessment Inventory
(hereinafter PAI) scores, but indicated that he had “extreme
elevations for conversion and for physiological complaints” (Tr.
268).

Goff noted that Plaintiff “was able to understand, follow

and carry out simple instructions.
complexities” (Tr. 268).

He has difficulty with

The Psychologist thought Ravizee’s

preoccupation with his physical condition “would interfere with
his ability to deal with the stresses and pressures of the
workplace” (Tr. 268).

The diagnosis was Somatoform Disorder,

NOS, and mild mental retardation.

In connection with that

examination, Goff completed a mental medical source opinion form
in which he found Plaintiff markedly limited in his ability to
understand and carry out detailed or complex instructions and
use judgment in detailed or complex work-related decisions (Tr.
270-71).

Ravizee would be extremely limited in his ability to

respond to customary work pressures and maintain attention,
concentration, or pace for periods of at least two hours; he had
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an extreme constriction of interests.

Goff found that Plaintiff

had suffered these impairments for all of his life and that
these findings indicated adaptive functioning deficits,
manifested before he turned twenty-two years old, with regard to
self-direction, self-care, health, and work.
At the evidentiary hearing, the ALJ questioned Sydney
Gardner, a psychological expert (hereinafter PE), who stated
that Ravizee had no diagnosis of an emotional impairment and no
history of mental health treatment (Tr. 61-66).

The PE stated

that Psychologist Goff’s somatoform disorder diagnosis was
inconsistent with the record evidence because Plaintiff did not
seek extensive medical treatment for physical ailments and pain
that would demonstrate an obsessive focus with them.

Gardner

stated that although Plaintiff had “a history of special
education and . . . IQ scores in the borderline range,
consistent with his overall adaptive abilities,” he had no
history of mental retardation and his work history and adaptive
abilities belied such a diagnosis (Tr. 62, 63).

The PE stated

that Plaintiff’s reasoning, judgment, and comprehension and use
of grammar and vocabulary were higher than one would expect of a
mentally retarded person.

Gardner indicated that the invalidity

of the PAI might call into question Ravizee’s IQ test scores.
7

On questioning by Plaintiff’s Attorney, the PE acknowledged that
some mentally retarded people would likely be placed in a
special education curriculum but could function independently
(Tr. 66-67).
This concludes the Court’s summary of the evidence.5
Ravizee claims that the ALJ erred in rejecting the opinion
of the only examining psychologist (Doc. 14, pp. 4-8) and in
determining that he did not meet the requirements of Listing
12.05C (Doc. 14, pp. 8-9).

As these claims are interdependent,

the Court will discuss them together, beginning with the latter.
Subsection C of Listing 12.05 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 (2014).

The Court notes

that Ravizee bears the burden of proving his impairment meets—or
medically equals—a listed impairment.
1350, 1353 (11th Cir. 1986).

Bell v. Bowen, 796 F.2d

The Listing analysis follows.

Ravizee scored a full-scale IQ score of 67 on the WAIS-IV
(Tr. 267).

The ALJ noted the IQ score, but made no specific

5

The Court finds no reason to summarize hearing testimony from
Plaintiff (Tr. 43-60), the medical expert (Tr. 60-61), or the
vocational expert (Tr. 68-75) as no claim regarding them is made.

8

finding of its validity.

Since the ALJ did not determine the IQ

score was invalid, the Court finds it valid.6
The ALJ found Plaintiff’s obesity, vision, and arthritis to
be severe impairments (Tr. 26). The Eleventh Circuit Court of
Appeals held that the second prong of 12.05C is met when a
finding is made that a claimant had an additional severe
impairment, holding that “significant work-related limitation of
function” “involves something more than ‘minimal’ but less than
‘severe.’”

Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515

(11th Cir. 1985).
The Court finds that the two prongs of Listing 12.05C have
been satisfied.7

6

Ravizee correctly notes that social security regulations, in
discussing intelligence tests, state that “[i]n cases where more than
one IQ is customarily derived from the test administered, e.g., where
verbal, performance, and full scale IQs are provided in the Wechsler
series, we use the lowest of these in conjunction with 12.05.” 20
C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.00(D)(6)(c) (2014).
Though the ALJ’s determination suggests that he favors (see Tr.
29, 32, 33) the General Ability Index score of 72, as opposed to the
Full Scale IQ score of 67 (both on the WAIS), the Court will proceed
using the lower score as instructed by the regulations. However, it
notes that, in Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)
(citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986), the
Eleventh Circuit Court of Appeals held that “a valid IQ score need not
be conclusive of mental retardation where the I.Q. score is
inconsistent with other evidence in the record on the daily activities
and behavior.”
7
The Court notes Ravizee’s argument that “a claimant whose
impairment meets a listing is disabled” (Doc. 14, p. 9). However,
satisfying the two prongs of Listing 12.05C is not sufficient for a
disability finding. Further analysis is required.

9

However, the introductory notes to Listing 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 (2014).

The Eleventh Circuit Court of

Appeals, in Hodges v. Barnhart, 276 F.3d 1265, 1266 (11th Cir.
2001), held “there is a presumption that mental retardation is a
condition that remains constant throughout life,” further
holding “that a claimant need not present evidence that she
manifested deficits in adaptive functioning prior to the age of
twenty-two, when she presented evidence of low IQ test results
after the age of twenty-two.”

Hodges, 276 F.3d at 1266.

However, the presumption is rebuttable.

Hodges, 276 F.3d at

1267.
The ALJ’s findings regarding Listing 12.05C are as follows:
I conclude that the claimant is Borderline
Intellectual Functioning, as is demonstrated
by a preponderance of the evidence from the
claimant’s employment history, his
performance in the Job Corps, his obtaining
a driver’s license with a written test, and
in his activities of daily living which
establish that he has throughout his life
engaged in normal activities with no
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significant deficits in functioning. As to
the other listings, considering the “B”
criteria, I find the claimant has no mental
health treatment history and no mental
health diagnoses of significance, so that I
find that as to activities of daily living
the claimant has no limitations, as to
social functioning the claimant has mild
limitations, as to concentration,
persistence and pace the claimant has no
more than mild to moderate difficulties and
that as to episodes of de-compensation there
are no limitations in this area.
(Tr. 29).

In reaching these conclusions, the ALJ discounted

Ravizee’s testimony of limitation as unsupported by the evidence
(Tr. 32-33, 35), a finding gone unchallenged in this action.
The ALJ gave great weight to the testimony of the medical
expert, Dr. Whatley, and PE Garner, but gave no particular
weight to Psychologist Goff’s opinions (Tr. 29, 34).
The ALJ’s discounting of Goff’s conclusions is the nut of
this dispute.

If the Psychologist’s conclusions are given

weight, Ravizee is disabled under the Listing; if discounted, he
is not.
Plaintiff challenges the ALJ’s credibility determination,
arguing that Goff—and not Garner—actually examined him as
opposed to merely looking at the record; Goff and Garner
reviewed the same evidence, but formed different conclusions.
As support for Goff’s mental retardation diagnosis, Ravizee
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points to his special education placement, his failing the
graduation exam four times, and his performing only unskilled
work his whole life.

Plaintiff further questions the ALJ’s

activities of daily living finding and apparent belief that
Garner tested Plaintiff in reaching her decision.
The Court first notes that "although the opinion of an
examining physician is generally entitled to more weight than
the opinion of a non-examining physician, the ALJ is free to
reject the opinion of any physician when the evidence supports a
contrary conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084

(5th Cir. 1981);8 see also 20 C.F.R. § 404.1527 (2014).

It

further notes that, under the Social Security regulations, ALJs
“may also ask for and consider opinions from medical experts on
the nature and severity of your impairment(s) and on whether
your impairment(s) equals the requirements of any impairment
listed in appendix 1 to this subpart.”
404.1527(e)(2)(iii) (2014).

20 C.F.R. §

This testimony is to be evaluated

the same as the other record evidence.

Id.

Plaintiff correctly argues that Goff examined and

8

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

12

administered tests to Ravizee, though Garner did not.9
C.F.R. § 404.1527(c)(1 & 3).

See 20

However, Goff only saw Plaintiff

once, so his conclusions are not based on treatment history.
See § 404.1527(c)(2).10
both are specialists.

The opinions are weighted the same as
See § 404.2537(c)(5).

The ALJ discounted Goff’s exam and test results because he
failed to consider Plaintiff’s employment history and daily
living activities (Tr. 27, 29, 31, 34).

The ALJ further found

Goff’s findings of marked and extreme limitations in the
workplace inconsistent with other evidence of record (Tr. 33).
Goff reported seeing Ravizee’s Work History Report, showing
he worked as a laborer and heavy equipment operator for a lumber
mill for thirteen years (Tr. 187-88).

The ALJ correctly found

that Goff improperly characterized this work as non-continuous
(Tr. 265; cf. Tr. 27, 29, 34).
Goff also reported Plaintiff’s attending a job corps
training program, studying building maintenance and carpentry;
the Psychologist expressed skepticism as to whether he completed
the programs (Tr. 265).

The ALJ correctly noted that Ravizee

9

The Court does not share Ravizee’s concern that the ALJ thought
Garner herself tested Plaintiff in reaching her decision (Doc. 14, p.
6); though the transcript indicated such a possibility (Tr. 63), the
written decision did not (see Tr. 27).
10
Unless otherwise noted, all C.F.R. cites will be to 20 C.F.R.

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completed—and even earned certificates from—the programs (Tr.
27; cf. Tr. 55), discrediting Goff for discounting Plaintiff’s
testimony in spite of the Psychologist’s having found him to be
a credible historian (Tr. 31; cf. Tr. 265).
The ALJ also discounted Goff’s conclusions for not properly
considering Ravizee’s activities of daily living

(Tr. 29).

The

ALJ correctly found that Goff did not mention—or, apparently,
consider—them (see Tr. 264-69).
However, the Court notes that the “activities of daily
living [that Plaintiff] had been able to perform for so many
years prior to coming to [Goff’s] examination” consisted of
“performing simple household chores and taking care of his
personal hygiene” (Tr. 29, 34).

The ALJ specifically found that

Ravizee could “make sandwiches, and cook frozen dinners and
pizza” and “watch[] T.V. every day” (Tr. 34).
The Court notes that the ALJ accepted Goff’s findings that
Plaintiff was moderately limited in his ability to understand,
remember, and carry out simple instructions and in using
judgment in simple one- or two-step decisions (Tr. 33; cf. Tr.
270) (“Even Dr. Goff finds that the claimant can generally be
functional in performing simple, routine and repetitive tasks.
Accordingly, Dr. Goff’s medical source opinion is rejected as to
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any marked or extreme limitations”).

The Court finds the ALJ’s

conclusion that Goff did not consider Ravizee’s daily activities
inconsistent with these particular findings.
However, the ALJ discounted Goff’s findings of marked and
extreme limitations as unsupported by any other evidence of
record (Tr. 33).

As support for this conclusion, he gave great

weight to Garner’s testimony in which she specifically found no
basis for a longitudinal history of mental retardation (Tr. 34;
cf. Tr. 27-28).

As further support for his finding that Ravizee

had not demonstrated adaptive deficits, the ALJ cited
“claimant’s employment history, his performance in the Job
Corps, his obtaining a driver’s license with a written test, and
in his activities of daily living which establish that he has
throughout his life engaged in normal activities with no
significant deficits in functioning” (Tr. 29).
The Court has previously discussed Plaintiff’s work history
and his Job Corps training, specifically finding that Goff had
made incorrect assumptions about them.

Ravizee challenges the

ALJ’s conclusion about his work history, beyond his finding made
regarding Goff, pointing out that his jobs required only
unskilled manual labor (Doc. 14, p. 7; cf. Tr. 69-70).

The

Social Security regulations define unskilled work as “work which
15

needs little or no judgment to do simple duties that can be
learned on the job in a short period of time. . . . [A] person
can usually learn to do the job in 30 days, and little specific
vocational preparation and judgment are needed.”

§ 404.1568(a).

Furthermore, “little specific vocational preparation and
judgment are needed.”

Id.

The Court does not accept Ravizee’s premise that he is
mentally retarded because he only performed unskilled work.
While an ability to perform jobs requiring a higher skill level
might rule out a 12.05C diagnosis, the reverse is not true.
The Court finds substantial support for the ALJ’s rejection
of Psychologist Goff’s conclusions.

Having reached that

decision, the Court holds that the ALJ’s findings rebut the
presumption that Plaintiff’s IQ score of 67 manifested lifelong
adaptive functioning deficits, discussed in the introductory
remarks to Listing 12.05 and contemplated in Hodges.

The Court

finds substantial support for the ALJ’s conclusion that Ravizee
does not meet the requirements of Listing 12.05C.
At Oral Argument, Plaintiff’s Attorney began his argument
by relating a truth divulged early in his practice by an
experienced attorney:

“You can find an expert to testify that a

milk cow can outrun a racehorse.”
16

The Court understands the

argument but rejects it here.

Ravizee’s reliance on Goff’s

conclusions are misplaced as the Psychologist made errors about
Plaintiff’s work history and Job Corps’ training, things that go
to the very heart of this decision.

Specifically, the ALJ found

that Ravizee had demonstrated an ability to overcome
intellectual impairment and live life free of disability.
Court agrees with that decision.

The

Though a different conclusion

might have been reached had Plaintiff been less industrious, the
facts here are what they are.
Plaintiff has raised two different claims in bringing this
action.

Both are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 30th day of June, 2015.

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

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