Ward v. Colvin

Filing 21

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 REVERSED and that this action be REMANDED for further administrative procedures consistent with this Court's Order, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 6/29/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES WARD,

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

CIVIL ACTION 14-515-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 a claim for disability insurance benefits and Supplemental
Security Income (hereinafter SSI) (Docs. 1, 13).

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. 19).
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
REVERSED and that this action be REMANDED for further
administrative procedures consistent with this Court’s Order.
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), which must be supported by substantial
evidence.

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

The

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

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Ward was twentynine years old, had completed an eleventh-grade education (Tr.
63), and had previous work experience as a milk receiver for a
tank truck, net fisherman, and a forklift operator (Tr. 78).

In

claiming benefits, Plaintiff alleges disability due to a closed
head injury, right hand and shoulder injuries, and a depressive
disorder (Doc. 12).
The Plaintiff filed applications for disability benefits
and SSI on June 14, 2010, asserting a disability onset date of
May 14, 2010 (Tr. 160-72; see Tr. 15).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although he could not return to his past

2

relevant work, there were specific medium-exertion jobs that he
could perform (Tr. 15-25).

Plaintiff requested review of the

hearing decision (Tr. 7-11) 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.
that:

Specifically, Ward alleges

(1) The ALJ did not properly consider his pain and

limitations; (2) the ALJ improperly rejected the opinions of
examining physicians; (3) the ALJ did not state what weight he
gave certain evidence; (4) the ALJ did not properly develop the
record; and (5) the Appeals Council failed to properly review
evidence submitted to it (Doc. 13).
and denies—these claims (Doc. 14).

Defendant has responded to—
The relevant evidence of

record follows.
On January 21, 2006, Ward went to the DCH Regional Medical
Center ER for treatment of multiple scalp lacerations after
being pistol-whipped, resulting in a closed head injury (Tr.
274-87).

Plaintiff also had moderate tenderness in the right

wrist and right proximal forearm.
spine were normal.

CT’s of the head and cervical

There were no significant bone abnormalities

in the right forearm.
On June 4, 2010, Plaintiff was treated at Uniontown Health

3

Center for a snake bite on his right leg (Tr. 291-95).
On September 24, 2010, Dr. John C. Simmons examined Ward
whose chief complaint was memory loss and poor concentration as
a result of his previous pistol-whipping and concussion; he also
experienced right hand pain and swelling, right shoulder and
neck pains, and chronic head pain (Tr. 297-301).

Simmons noted

swelling in the right hand and wrist as well as decreased grip
strength and dexterity; he also had decreased range of motion
(hereinafter ROM) in the right wrist, arm, and forearm.

It was

the Doctor’s opinion that Ward “would have difficulty performing
work related physical activities using right arm or hand
including activities such as lifting, carrying, etc.
[Plaintiff] would also have difficulty with any work requiring
manual dexterity using right hand.

Also, any work requiring use

of his memory would be difficult” (Tr. 299).

Simmons completed

an ROM chart showing the diminished capacities (Tr. 300-01).
On October 29, 2010, Dr. E. Russell March, Jr. reviewed
Plaintiff’s medical record and, without benefit of examination,
determined that he could lift and/or carry fifty pounds
occasionally and twenty-five pounds frequently; he could sit and
stand/walk for six hours each during an eight-hour day (Tr. 30411).

Ward would be limited in operating hand controls.

4

Ward

could climb a ladder, rope, or scaffolds only occasionally but
could frequently climb a ramp or stairs as well as balance,
stoop, kneel, crouch, and crawl.

Though Plaintiff would be

limited in reaching or with gross manipulation, fine
manipulation was not a problem.
On November 15, 2010, Psychologist Richard S. Reynolds
examined Ward who provided his own psychological and medical
history (Tr. 313-15).

The Psychologist noted Plaintiff was

oriented in four spheres; mood was “down” and affect was mildly
dysthymic.

Thought content was logical and associations were

tight; recent and remote memory, judgment, insight and decisionmaking abilities were intact.

It was Reynolds’s opinion that

Plaintiff’s “ability to understand, carryout, to remember
instructions, and to respond appropriately to supervision,
coworkers, work pressures in a work setting appear intact.

Mr.

Ward may be experiencing some mild depression secondary to
medical issues, however, [sic] there is no significant
psychological impairment noted or reported by the claimant” (Tr.
315).
On December 20, 2010, Psychologist Joanna Koulianos
reviewed Plaintiff’s medical record and, without benefit of
examination, completed a Psychiatric Review Technique Form

5

indicating that Plaintiff suffered from an Adjustment Disorder
with a depressed mood (Tr. 316-29).

The Psychologist further

indicated that Ward would have only mild limitations in his
daily activities, maintaining social functioning, and in
maintaining concentration, persistence, or pace.
On September 7, 2011, Psychologist Nina E. Tocci examined
Plaintiff, finding him oriented in four spheres; he had a good
fund of information and comprehension, but his ability to
abstract was impaired (Tr. 334-37).

Ward’s thought content was

logical and appropriate to mood and circumstances.
pain as ten, daily, on a ten-point scale.

He rated his

Plaintiff had some

insight, fair social judgment, and appeared to be functioning
within the borderline range of intellectual ability.

Tocci

diagnosed him to have a Depressive Disorder, NOS and determined
he had only a poor prognosis; she indicated that he currently
had—and had had for a year—a GAF of 60.1

The Psychologist stated

that she had reviewed the record in reaching her conclusions and
recommended that Ward be evaluated by a neurologist as he had
“described symptoms that are consistent with [Traumatic Brain
Injury) and other symptoms” (Tr. 336).

1

A GAF score between 61 and 70 indicates “[s]ome symptoms OR some
difficulty in social, occupational, or school functioning, but
generally functioning pretty well, has some meaningful interpersonal

6

On September 12, 2011, Dr. Stephen J. Robidoux examined
Plaintiff for complaints of right hand and head swelling; he was
oriented in three spheres with intact past and present memory
(Tr. 339-43).

Ward had full ROM throughout his body; the

examination was normal.

Robidoux indicated that there was no

explanation for Plaintiff’s assertion that he could not feel
fine touch on his entire right arm.

The Doctor said he had no

limitations in “sitting, standing, walking, running, lifting,
carrying, pushing, pulling, climbing, squatting, handling
objects, using hand and foot controls, talking, listening and
travel” (Tr. 342-43).
On September 29, 2011, Psychologist Donald E. Hinton
reviewed Ward’s medical record and, without benefit of
examination, completed a Psychiatric Review Technique Form
indicating that Plaintiff had been diagnosed to have had a
closed head injury and a depressive disorder (Tr. 344-57).
Hinton determined that he had mild limitations in his daily
activities and moderate limitations in maintaining social
functioning and in maintaining concentration, persistence, or
pace; Ward had never had an episode of decompensation of
extended duration.

On the same date, the Psychologist completed

relationships.” See
https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm

7

a Mental Residual Functional Capacity Assessment that Plaintiff
would be moderately limited in his ability to understand,
remember, and carry out detailed instructions and in maintaining
attention and concentration for extended periods (Tr. 358-61).
Likewise, Ward would be moderately limited in interacting
appropriately with the general public, accepting instructions
and responding appropriately to criticism from supervisors, and
responding appropriately to changes in the work setting.

Hinton

also found Plaintiff capable of doing the following:
A) Able to understand and recall simple
instructions, not detailed.
B) Able to carry out simple tasks
adequate to complete 8 hr work days provided
customary breaks are given. Can maintain
attention and concentrate 2+ hrs with
customary breaks.
C) Able to work with public and coworkers in a casual capacity and can accept
non-threatening supervision with supportive
feedback.
D) Demands at work should mostly be
routine.
(Tr. 360).
On April 30, 2012, Dr. Jack Bankhead, reviewed Plaintiff’s
medical record and, without benefit of examination, completed a
case analysis indicating that Ward was not qualified for
disability payments (Tr. 362-63).

8

On December 11, 2011, Hale County Hospital reported that
Ward had been in an altercation and was hit in the back of the
head and left eye with an iron rod (Tr. 373-80).

On September

15, 2012, Ward complained of a headache and swelling on the
right side of his head, related to his sinuses (Tr. 365-72).
This concludes the Court’s summary of the record evidence.2
Ward first claims that the ALJ did not properly consider
his testimony of pain and limitation.

He more specifically

claims that the ALJ either misunderstood or mischaracterized the
evidence in reaching her decision (Doc. 13, pp. 9-13).
The standard by which 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
2

One exam will be reviewed later in connection with Ward’s claim
that it was not properly considered by the Appeals Council.

9

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
(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) (2014).
The ALJ found Ward’s impairments could be expected to cause
symptoms, but that his “statements concerning the intensity,
persistence and limiting effects of these symptoms [were] not
entirely credible” (Tr. 22).

As support, she pointed to a

report Plaintiff completed saying that he could take care of his
10

personal needs, drive, do his personal shopping, and handle his
financial affairs (Tr. 22; cf. Tr. 218-25).
The Court notes that the ALJ also acknowledged Ward’s
statements that he did not prepare meals or do any house- or
yard-work; she reported his statements that he had fished in the
past, but no longer could because of his right hand pain (Tr.
22; cf. Tr. 218-25).

The ALJ relayed Ward’s testimony that his

impairments affected his ability to lift, stand, reach, walk,
hear, complete tasks, concentrate, understand, use his hands,
and get along with others and that he had memory problems, could
not pay attention or follow instructions, and did not handle
stress or routine changes well.

In another questionnaire, Ward

indicated that he had difficulty buttoning his shirt and pulling
up his pants, shaving, and grooming with his right hand; it hurt
his right hand putting the car in gear to drive, but he just
dealt with it (Tr. 22; cf. Tr. 212-24).
Plaintiff correctly points out, though, that the ALJ, in
summarizing the evidence, reported some of it incorrectly (Doc.
13, pp. 9-11).

For example, she cited a report by Psychologist

Reynolds for a statement made by Ward that he played video games
and played with his dog (Tr. 22; cf. 314).3

3

Reynolds actually

The Court notes that Reynolds’s report contradicts Plaintiff’s

11

reported that Plaintiff had stated that he used to play video
games, but no longer did because of his hand pain (Tr. 314); the
ALJ also failed to acknowledge Ward’s testimony at the hearing
that he could no longer play those games (Tr. 73).

The ALJ’s

use of this video game evidence to discredit Ward was error.
In another instance cited, the ALJ reported that Plaintiff
“was able to prepare simple meals such as sandwiches” (Tr. 22).
Ward reported that he could prepare sandwiches, but did not
indicate an ability to put any other meal together (see Tr. 207,
213; cf. Tr. 220); he did testify, though, about barbequing (Tr.
67).

The Court sees no slight here.
Ward also complains that although the ALJ noted that he

regularly attended sporting events, she failed to note that he
needed to be reminded of the events and someone to accompany him
(Doc. 13, p. 9; Tr. 22; cf. Tr. 222).

While Plaintiff’s

assertion is true, it does not diminish the fact that he was
participating in the activities.
Ward also took issue with the ALJ’s statements describing
“daily headaches with dizziness caused by running” (Tr. 23; cf.
Tr. 209-10).

The Court finds it unlikely that the ALJ—or

anybody else for that matter—thinks that Plaintiff “runs every

statement that he did not take care of any pets (see Tr. 219).

12

day and causes himself to have headaches” (Doc. 13, p. 10).
Plaintiff dislikes the ALJ’s characterization of his
unsuccessful work attempt in that she concluded that it
“indicate[d] that the claimant’s daily activities have been
somewhat greater than the claimant has generally reported” (Tr.
23; Doc. 13, p. 10).

Evidence shows that Ward testified that he

had worked full-time, pumping milk from an eighteen-wheeler to a
silo, but he received help from a brother-in-law and co-worker
because he could not do it all himself, though no other employee
received similar help (Tr. 64, 72-73); the ALJ did not report
this accommodation.

Plaintiff argues that this testimony

enhances his credibility, rather than diminishes it as found by
the ALJ.

The Court must confess that it can make no sense of

this particular argument.
Ward also argues against the ALJ’s characterization of his
work history as “significant” during the four-year period
preceding his onset date during which Ward had been experiencing
the same problems for which he now claims disability (Doc. 13,
pp. 10-11; cf. Tr. 23).

While the Court would not characterize

that work history as significant (see Tr. 179-81), the Court
finds the ALJ’s word choice harmless.

The ALJ correctly pointed

out that the evidence shows that Ward was able to work, to some
13

degree, for four years before asserting disability, with no
apparent change in impairment or symptomatology.
Ward further asserts that the ALJ’s discounting of his pain
and limitations is misplaced in that she failed to note his
repeated assertions that he lacked money or insurance to obtain
treatment (Doc. 13, p. 11; cf. Tr. 23).

The record reflects

Plaintiff’s testimony concerning his lack of resources before
the ALJ (Tr. 67, 74) and to examiners (Tr. 334, 384).

The

Eleventh Circuit Court of Appeals has held that poverty excuses
noncompliance with medical treatment.

Dawkins v. Bowen, 848

F.2d 1211, 1213 (11th Cir. 1988).
The ALJ’s decision is silent as to Ward’s assertions of an
inability to pay.

The Government attempts to correct this

oversight in asserting that Plaintiff once received care for a
snakebite from Uniontown Health Clinic, “a medical center
offering free or discounted health services to individuals who
qualify;” Defendant goes on to point out that Ward had no
complaints at the ER besides the snakebite (Doc. 14, pp. 5-6;
cf. Tr. 291-94).4

While the ALJ—instead of the Government

playing cleanup—should have reached this conclusion, it appears
that health care was available to Ward, but he did not use it.

4

As support, the Government cites the following:

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http://free-

The Court finds Plaintiff’s argument that the ALJ did not
properly consider his claims of pain and limitation to be
without merit.

Though there is error in the decision, it is, at

most, even cumulatively, harmless.
Plaintiff next claims that the ALJ improperly rejected the
opinions of two examining physicians, specifically referencing
the reports from Dr. Simmons and Psychologist Tocci (Doc. 13,
pp. 13-14).

It should be noted that "although the opinion of an

examining physician is generally entitled to more weight than
the opinion of a non-examining physician, the ALJ is free to
reject the opinion of any physician when the evidence supports a
contrary conclusion."

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

(5th Cir. 1981);5 see also 20 C.F.R. § 404.1527 (2014).
In her determination, the ALJ discounted those two opinions
because she found them “grossly inconsistent with the lack of
supporting medical evidence and stated activities of daily
living (Exhibit B9E and B6F), as well as inconsistent with the
professional opinions of Dr. Reynolds, Dr. Robidoux, and Dr.
Hinton” (Tr. 23).
The evidence shows that Dr. Robidoux’s physical examination

clinics.com/clinic/uniontown-health-center-uniontown-alabama-36786/
5
The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions

15

is at odds with that of Dr. Simmons regarding Ward’s use of his
right arm/wrist; while Simmons found that Plaintiff would have
difficulty performing activities with his right arm and hand
(Tr. 299), Robidoux placed no restrictions on him at all (Tr.
342-43).

X-rays, dating from the time of the injury, showed

nothing abnormal (Tr. 277).
Psychologist Tocci examined Ward and indicated that he was
functioning at the borderline range of intelligence ability and
had non-specified depression; though his prognosis was poor,
Tocci did not indicate that his impairments would keep him from
working (Tr. 336).

Psychologist Reynolds examined Plaintiff and

determined that although he had mild depression, there was no
psychological reason he could not work (Tr. 315).

Psychologist

Hinton did not examine Plaintiff in determining that he had had
a closed head injury and a depressive disorder but could work
within certain specified, but not marked or extreme, limitations
(Tr. 358-60).

Ward argues that “[t]here is no inconsistency

between Dr. Tocci’s findings and the opinion of non-examiner Dr.
Hinton” (Doc. 13, p. 13).

The Court acknowledges the

similarities of their reports, pointing out that Hinton clearly
found Plaintiff able to work.

of the former Fifth Circuit rendered prior to October 1, 1981.

16

The ALJ discounted Tocci’s and Simmons’s reports also as
being inconsistent with Ward’s daily activities.

The Court has

reviewed those activities—and the ALJ’s assessment of them—in
discussing the prior claim and found support for her conclusion
that Ward’s testimony was not fully credible.

Likewise,

although the Court does not find the conclusions of Tocci and
Simmons “grossly inconsistent” with the balance of the record,
there is substantial support for the ALJ’s decision to give
greater weight to the other evidence.
Plaintiff next asserts that the ALJ did not state what
weight he gave certain evidence, specifically pointing to the
reports of three non-examiners, Drs. March and Bankhead and
Psychologist Koulianos.

Ward asserts that March’s and

Bankhead’s opinions supported Dr. Simmons’s conclusions
(rejected by the ALJ) and that Koulianos’s report was based on
the report of Dr. Reynolds (given weight by the ALJ) (Doc. 13,
pp. 14-15).
The Court notes that the ALJ is required to "state
specifically the weight accorded to each item of evidence and
why he reached that decision."

Cowart v. Schweiker, 662 F.2d

731, 735 (11th Cir. 1981).
The Court previously summarized the report of Dr. March
17

(Tr. 304-11) and now finds that the conclusions there are less
restrictive than the ALJ’s determination of Ward’s residual
functional capacity (Tr. 20).

Dr. Bankhead’s report consisted

of little more than a recitation of the evidence he reviewed,
his only conclusion being that Plaintiff was not qualified for
disability payments (Tr. 362-63); this is consistent with the
ALJ’s determination.

The report completed by Koulianos found

only mild limitations (Tr. 316-29), consistent with the ALJ’s
decision.

The Court finds that the ALJ committed error in not

reporting—and weighing—this evidence, but finds it harmless as
its inclusion would not have changed her conclusions.
Plaintiff next claims that the ALJ did not properly develop
the record.

Specifically, he points to Psychologist Tocci’s

recommendation that Ward be evaluated by a neurologist as he had
“described symptoms that are consistent with [Traumatic Brain
Injury) and other symptoms” (Tr. 336; Doc. 13, pp. 15-16).

Ward

also points to his own motion for an examination by a
neurologist (Tr. 270), left unaddressed by the ALJ.
The Eleventh Circuit Court of Appeals has required that "a
full and fair record" be developed by the ALJ even if the
claimant is represented by counsel.
F.2d 731, 735 (11th Cir. 1981).

Cowart v. Schweiker, 662

However, the ALJ “is not
18

required to order a consultative examination as long as the
record contains sufficient evidence for [her] to make an
informed decision.”

Ingram v. Commissioner of Social Security

Administration, 496 F.3d 1253, 1269 (11th Cir. 2007) (citing
Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)).
In this action, the ALJ obtained consultative examinations
by Dr. Simmons (Tr. 297-301), Psychologist Reynolds (Tr. 31315), Psychologist Tocci (Tr. 334-37), and Dr. Robidoux (Tr. 33943).

In addition to that, he had non-examiners Dr. March (Tr.

304-11), Psychologist Koulianos (Tr. 316-29), Psychologist
Hinton (Tr. 344-57), and Dr. Bankhead (Tr. 362-63) review the
record and report their findings.6

Additionally, a Vocational

Expert testified at the hearing (Tr. 78-84).

The Court finds

that the evidence generated in those reports provide substantial
evidence for the ALJ’s conclusion that Ward was not disabled.
Ward lastly claims the Appeals Council failed to properly
review the evidence generated by Neuropsychologist John R.
Goff’s examination of April 22, 2013 (Doc. 13; see Tr. 381-90).
The record shows that Ward submitted the evidence the same day
the ALJ’s decision was entered (Tr. 25, 31).

Its review passed

to the Appeals Council that considered it, but found no basis

6

The Court again notes the ALJ’s failure to acknowledge the

19

for changing the ALJ’s decision (Tr. 2).

The Court’s review of

that evidence follows.
On April 22, 2013, Neuropsychologist John R. Goff performed
an examination after reviewing the record evidence and found
Plaintiff oriented as to time, place, and person (Tr. 381-90).
He administered the Victoria Symptom Validity Test, the results
of which Goff found valid; however, the personality assessment
results were considered invalid because of a lack of
understanding.

On the Wechsler Adult Intelligence Scale (WAIS-

IV), Ward scored a verbal comprehension of 68/2, perceptual
reasoning of 65/1, working memory of 74/4, and processing speed
of 79/8; the first two fell within the mildly retarded range
while the latter two fell within borderline range of
intelligence.

The full scale IQ score was 65 and the General

Ability Index was 63, both in the mildly retarded range; Goff
voiced his belief that the scores were valid.

The Reitan-

Indiana Aphasia Screening Test demonstrated primitive
handwriting, poor spelling, reading at the fourth-grade level,
and the ability to perform simple math.

Grip strength was half

of what was expected on the left and only twenty percent on the
right; dexterity measured below the first percentile, showing

reports of March, Koulianos, and Bankhead.

20

that Ward had troubled hands and arms.

Plaintiff received

normal scores on a test of visual motor problem solving skills;
he had very low scores on the Wechsler Memory Scale (WMS-III).
The Wide Range Achievement Test (WRAT-IV) revealed reading at
the mid-fifth-, math computation at the beginning fourth-, and
spelling at the sixth-grade level.

Goff stated that it was

“possible that this man has always been functioning within the
mildly retarded range of psychometric intelligence but we cannot
be sure about that and without some additional information and
workups it is pretty difficult to say” (Tr. 387).

He further

stated that he thought Ward’s right arm pain was real and that
he was not a malingerer.

Finally, the Psychologist noted:

During this examination he was able to
understand, follow and remember simple
instructions. He has difficulties with
complex instructions and with remembering
instructions in general. He has more
problems carrying out instructions
particularly if he has to use his dominant
hand and arm which is weak and mal-dexterous
and affected by pain. He would be seen as
preoccupied with his discomfort and
problematic in terms of memory by
supervisors, co-workers and others. These
physical difficulties represent impediments
to his ability to deal with the stresses and
pressures of the workplace as well.
(Tr. 387).

Goff went on to find Ward functioning within the
21

mildly retarded range of psychometric intelligence, likely
representing a decline from previous functioning.

The

Psychologist also completed a Medical Source Opinion Form
(Mental) indicated that Plaintiff was markedly limited in his
ability to understand detailed or complex instructions and
respond to customary work pressures and was extremely limited in
carrying out simple, detailed, or complex instructions and in
maintaining attention concentration or pace for periods of at
least two hours (Tr. 389-90).

It was Goff’s opinion that Ward

had demonstrated deficits in adaptive functioning in work,
health, and functional academic skills before he turned twentytwo years old.
With regard to a claim that the Appeals Council has not
properly considered new evidence, the Eleventh Circuit Court of
Appeals has stated the following in an unpublished decision:
Generally, a claimant is allowed to
present new evidence at each stage of this
administrative process. See 20 C.F.R. §§
404.900(b), 416.1470(b); Ingram v. Comm’s of
Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th
Cir. 2007). The Appeals Council has the
discretion not to review the ALJ's denial of
benefits. 20 C.F.R. §§ 404.970(b,
416.1470(b). However, the Appeals Council
must consider “new and material evidence”
that “relates to the period on or before the
date of the administrative law judge hearing
decision” and must review the case if “the
22

administrative law judge's action, findings,
or conclusion is contrary to the weight of
the evidence currently of record.” Id. The
new evidence is material, and thus warrants
a remand, if “there is a reasonable
possibility that the new evidence would
change the administrative outcome.” Hyde v.
Bowen, 823 F.2d 456, 459 (11th Cir. 1987).
When a claimant properly presents new
evidence, and the Appeals Council denies
review, the Appeals Council must show in its
written denial that it has adequately
evaluated the new evidence. Epps v. Harris,
624 F.2d 1267, 1273 (5th Cir. 1980). If the
Appeals Council merely “perfunctorily adhere
[s]” to the ALJ's decision, the
Commissioner's findings are not supported by
substantial evidence and we must remand “for
a determination of [the claimant's]
disability eligibility reached on the total
record.” Id.
Flowers v. Commissioner of Social Security, 441 Fed.Appx. 735,
745 (11th Cir. 2011).
In this action, Ward submitted evidence for consideration
the same day that the ALJ issued her determination.

There was

no finding by the Appeals Council that the evidence was
improperly submitted (see Tr. 1-5); the Government has made no
such argument either (see Doc. 14, pp. 11-12).

The Court finds

that the evidence was properly submitted.
As the Neuropsychologist’s report is dated before her
decision was entered, and was filed on the date of that
decision, there is no debate that the evidence “relates to the
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period on or before the date of the [ALJ’s] hearing decision.”
So the question for the Court is whether “there is a reasonable
possibility that the new evidence would change the
administrative outcome.”
Goff’s examination included psychological testing, not
previously performed, resulting in a mild mental retardation
diagnosis.

The Court finds nowhere else in the record any

reference to the possibility that Ward was mentally retarded;
the psychological evaluations pre-dating Goff’s testing all
suggested borderline intellectual functioning.

Though Ward had

not sought disability benefits on the basis of mental
retardation, these test scores now raise the possibility of such
a finding.
Goff also performed tests demonstrating decreased hand grip
strength and dexterity bilaterally.

The significance of this

evidence is that it corroborates the findings of Dr. Simmons who
also noted decreased grip strength, dexterity, and ROM issues.
Simmons’s conclusions were rejected by the ALJ in favor of those
of Dr. Robidoux; his examination makes no findings regarding
Plaintiff’s grip strength (see Tr. 339-43).
The Court finds that the evidence submitted by Goff is
material.

While the Court is well aware that it cannot reweigh
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the evidence of record, Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005), the Court finds, under Flowers, that there is a
reasonable possibility that the evidence submitted would have
changed the administrative result.

As the Appeals Council did

not explain why this evidence would not have made any difference
in the ALJ’s decision, the Court finds that the Council did not
properly consider it.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is ORDERED that the action be REVERSED and

that this action be REMANDED to the Social Security
Administration for further administrative proceedings consistent
with this opinion, to include, at a minimum, a supplemental
hearing for the purpose of reviewing this newly-submitted
evidence.

Judgment will be entered by separate Order.

DONE this 29th day of June, 2015.

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

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