Gipson v. Colvin

Filing 17

Order that the decision of the Commissioner of Social Security denying plaintiff's claim be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/28/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
FREDERICK GIPSON,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 14-00536-B

ORDER
Plaintiff Frederick Gipson (hereinafter “Plaintiff”) seeks
judicial

review

of

a

final

decision

of

the

Commissioner

of

Social Security denying his claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.
consented

to

have

the

proceedings in this case.

On October 9, 2015, the parties

undersigned
(Doc. 14).

conduct

any

and

all

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 filed his applications for benefits on April 28,

2011.

(Tr. 172, 174).

Plaintiff alleged that he has been

disabled since November 19, 2010, due to “mental problems, back
and

wrist

pain,

learning

disability,

slow

learner,

mental

depression, confuse (sic), back problem, lack of knowledge and
understanding, mood change each and every month, understanding
what is right and what is wrong.”
Plaintiff’s
request,

he

applications

was

granted

(Id. at 220, 224).

were

an

denied

and

administrative

upon

timely

hearing

before

Administrative Law Judge Mary E. Helmer (hereinafter “ALJ”) on
January 16, 2013.
with

his

(Id. at 45).

counsel

impairments.
vocational

(Id.

expert

provided testimony.

and
at

Plaintiff attended the hearing

provided
48).

(“VE”)

A

also

testimony
medical

appeared

(Id. at 67, 75).

related

expert
at

to

(“ME”)

the

his

and

hearing

a

and

On April 2, 2013, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.
request

(Id. at 39).

for

review

on

The Appeals Council denied Plaintiff’s
September

23,

2014.

(Id.

at

1-2).

Therefore, the ALJ’s decision dated April 2, 2013, became the
final decision of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

2

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on October 9, 2015 (Doc. 13), 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 finding that
Plaintiff does not meet the criteria for
Listing 12.05B, and in rejecting the
opinion of consulting psychologist, Dr.
Nina Tocci, Ph.D.?

2. Whether the hearing transcript is adequate
for the Court to review the case?
III. Factual Background
Plaintiff was born on May 1, 1974, and was thirty-eight
years

of

age

at

the

time

of

his

January 16, 2013.

(Tr. 45, 220).

was

special

enrolled

in

administrative

hearing

on

Plaintiff testified that he

education

classes

in

school

and

completed the eleventh grade, but was unable to pass the high
school graduation exam.

(Id. at 49, 216).

Plaintiff’s school

records reflect poor academic performance throughout his school
career.

(Id. at 216-18).

According

to

Plaintiff’s

testimony

and

his

Work

History

Report, he last worked as a machine operator and laborer for a
lumber company for approximately two and a half
February 2007 to July 2009.

(Id. at 53, 230).

years, from

Prior to that,

Plaintiff worked as a machine operator and laborer at a catfish

3

plant and at several warehouses.

(Id. at 51-53, 240-47).

also worked as a fork lift driver.

(Id. at 244).

fired from each of these jobs.1

He

Plaintiff was

(Id. at 51-53).

Plaintiff testified that he has problems getting along with
people, that people make him nervous, and that he prefers to be
alone.

(Id. at 54-58).

He also testified that he has been

taking medication for nervousness, and it helps him stay calm.
(Id. at 57-58).
Plaintiff

testified

that

he

lives

with

his

mother

and

generally spends his time watching television or sitting on the
porch.

He also socializes with his cousins, an old classmate,

and a girlfriend, and he goes to church.

(Id. at 54-56, 256).

Plaintiff had a driver’s license, but it was suspended because
of a DUI.2

(Id. at 61-62).

In his Function Report, Plaintiff reported that his mother
prepares his breakfast and that he can prepare sandwiches and
frozen meals.

(Id. at 251, 254).

He also reported that he has

“no problem” with personal care and is able to take care of all
of his own personal care needs; however, his mother tells him

1

Plaintiff testified that he could not remember why he was fired
from each of these jobs, except with respect to his job at
Foster Farms. Referencing that job, Plaintiff stated, “I think
I got into it with a supervisor, I think.” (Tr. 53).

2

Plaintiff was assessed at the Cahaba Center for Mental Health
with alcohol dependency. (Tr. 374-75).

4

how to dress and reminds him to take his medication.
253-254).
riding

Plaintiff further reported that he

lawn

mower,

shop

with

his

mother,

and

(Id. at

can operate a
count

change;

however, he does not pay his own bills and has never had a
checking

account.

(Id.

at

50,

255).

Plaintiff

reported

problems understanding, concentrating, and remembering, and also
indicated that he gets along “ok” with authority figures, but he
has been fired from jobs for mood changes.

(Id. at 257-258).

According to Plaintiff, his mind comes and goes and will not
allow him keep a job.
IV.

(Id. at 251-53).

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).

3

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.
3

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).
5

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

6

see

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 4

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 November
19, 2010, the alleged onset date, and that he has the severe
impairments of drug and alcohol abuse, borderline intellectual
functioning,
disorder.

mild

(Tr. 30).

depression,

and

antisocial

personality

The ALJ further found that Plaintiff does

not have an impairment or combination of impairments that meets
4

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)).

7

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

ALJ

concluded

that

(Id. at 31).

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a full range
of

work

at

all

exertional

“limited

to

simple,

levels,

routine,

and

except

that

repetitive

Plaintiff

tasks

is

involving

simple, work-related decisions, with few, if any, work place
changes; he “is limited to work involving no direct contact with
the public;” he “can perform work that involves being around coworkers throughout the day, but with only occasional interaction
with co-workers.”
while

Plaintiff’s

reasonably

be

(Id. at 33).
medically

expected

to

The ALJ also determined that

determinable

produce

the

impairments

alleged

could

symptoms,

his

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

(Id. at

35).
Utilizing

the

testimony

of

a

VE,

the

ALJ

found

that

considering Plaintiff’s residual functional capacity for a range
of work at all exertional levels, with the stated restrictions,
as well as his age, education, and work experience, Plaintiff is
capable

of

(heavy,

unskilled)

unskilled).

performing

(Id.

and
at

his
as

past
a

work
fish

38).

Thus,

8

as

a

lumberyard

machine
the

ALJ

feeder

helper

(medium,

concluded

that

Plaintiff is not disabled.
The

Court

now

(Id. at 39).

considers

the

foregoing

in

light

of

the

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

Issues
Whether the ALJ erred in finding that
Plaintiff does not meet the criteria for
Listing 12.05B and in rejecting the
opinion of consulting psychologist, Dr.
Nina Tocci, Ph.D.?

In

this

finding

that

case,
he

Plaintiff

has

the

argues

severe

that

the

impairment

ALJ
of

erred

in

borderline

intellectual functioning, that the ALJ erred in failing to find
that

he

meets

the

criteria

for

Listing

12.05B

(mental

retardation), and that the ALJ erred in rejecting the opinion of
consulting

psychologist,

Dr.

Nina

Tocci,

Ph.D.,

and

giving

substantial weight to the opinions of non-examining reviewing
psychologists,
Psy.D.5

Dr.

Ellen

(Doc. 8 at 1-3).

Eno,

Ph.D.,

and

Dr.

Sydney

Garner,

The Commissioner counters that the ALJ

did not err in rejecting the opinion of Dr. Tocci because Dr.
Tocci’s opinion is inconsistent with the substantial evidence in
the case, that the ALJ did not err in finding that Plaintiff
does

not

satisfy

the

criteria

for

Listing

12.05B

because

Plaintiff’s Full Scale IQ score of 48 is not valid and is not an
accurate

reflection

of

his

capabilities,

5

and

that

the

Because these three issues are inextricably interwoven, the
Court discusses them together.

9

substantial

evidence

(such

as

Plaintiff’s

medical

records

showing alcohol abuse and exaggeration of symptoms, Plaintiff’s
work history, Plaintiff’s activities of daily living, and the
opinions

of

the

medical

expert,

Dr.

Garner,

and

reviewing

psychologist Dr. Eno) reflect functioning more consistent with a
finding

of

borderline

retardation.

intellectual

(Doc. 11 at 10-13).

functioning

than

mental

Having carefully reviewed the

record in this case, the Court agrees that Plaintiff’s claim is
without merit.
In order

for a claimant to meet

Listing 12.05B (mental

retardation), he must present evidence of “[a] valid verbal,
performance,

or

full

scale

IQ

of

59

or

less.”

Jackson

v.

Astrue, 2011 U.S. Dist. LEXIS 95629, *12, 2011 WL 3757894, *4
(S.D. Ala. Aug. 25, 2011)(quoting 20 C.F.R. Part 404, Subpart P,
Appendix

1,

Listing

12.05B

(2010)).

In

addition,

he

must

satisfy the “diagnostic description” of mental retardation in
Listing

12.05

(the

listing

category

for

mental

retardation/intellectual disability),6 which provides that mental

6

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
10

retardation

“refers

to

significantly

subaverage

general

intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental 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, §§ 12.05.

In this Circuit, it is presumed that a person’s IQ remains
fairly constant throughout his or her life, and a valid IQ test
score

meeting

presumption
twenty-two.

the

that

Listing

the

criteria

condition

creates

manifested

a

itself

rebuttable
before

age

Dragg v. Astrue, 2012 U.S. Dist. LEXIS 71717, *6,

2012 WL 1885126, *3 (N.D. Ala. May 23, 2012) (citing Hodges v.
Barnhart, 276 F.3d 1265, 1268–69 (11th Cir. 2001)); Jackson,
2011 U.S. Dist. LEXIS 95629 at *12-13, 2011 WL 3757894 at *4.
However, the Commissioner may present evidence of the claimant’s
daily life to rebut the presumption of disability.

Whetstone v.

Barnhart, 263 F. Supp. 2d 1318, 1325 (M.D. Ala. 2003) (citing
Hodges, 276 F.3d at 1269).
Indeed, the Eleventh Circuit has made clear that “a valid
I.Q. score is not conclusive of mental retardation if the score
is

‘inconsistent

with

other

evidence

in

claimant’s daily activities and behavior.’”

the

record

on

the

Id. (citing Lowery

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.

11

v.

Sullivan,

979

F.2d

835,

837

(11th

Cir.

1992);

Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)).

Popp

v.

Accordingly,

the ALJ is tasked with determining whether there is sufficient
evidence

(relating

to

Hodges presumption.

plaintiff’s

daily

life)

to

rebut

the

See Grant v. Astrue, 255 Fed. Appx. 374,

375 (llth Cir. 2007); Hartman v. Colvin, 2014 U.S. Dist. LEXIS
91467, *7, 2014 WL 3058550, *3 (S.D. Ala. July 7, 2014).
In
process,

addition,
the

ALJ

as
is

part
tasked

of

the

with

disability

weighing

the

determination
opinions

and

findings of treating, examining, and non-examining physicians.
In reaching a decision, the ALJ must specify the weight given to
different medical opinions and the reasons for doing so.

See

Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th
Cir. 2011).

The failure to do so is reversible error.

See

Williams v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL
413541, *1 (M.D. Fla. 2009).
When
ALJ

weighing

the

opinion

of

a

treating

physician,

the

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other

12

hand,

is

not

physician.

entitled

to

the

same

deference

as

a

treating

Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).

An ALJ is also “required to consider the

opinions of non-examining state agency medical and psychological
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”
(11th

Cir.

Milner v. Barnhart,
2008)

404.1527(f)(2)(i)).
examining

sources

(unpublished)
“The

when

examining sources.”

275 Fed. Appx. 947, 948

ALJ

they

may
do

(citing
rely

not

on

20

C.F.R.

opinions

conflict

with

of

§
non-

those

of

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

580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

medical

good

cause

source

exists

when

it

to

is

discredit

contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004).

“Good cause may also

exist

where

a

doctor’s

opinions

are

merely

conclusory,

inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”

13

Sryock v. Heckler,

764

F.2d

834,

835

(11th

Cir.

1985)

(per

curiam)

(citation

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
In this case, the ALJ found that Plaintiff did not meet
Listing 12.05B on two grounds: (1) the IQ test score was invalid
and

(2)

the

evidence

of

Plaintiff’s

school

history,

work

history, medical records, and daily life are inconsistent with
an IQ score of 48 and are more consistent with a finding of
borderline

intellectual

(Tr. 33-38).

functioning

than

mental

retardation.

In doing so, the ALJ rejected the opinions and IQ

test results of consultative psychologist, Dr. Tocci, as being
inconsistent with the substantial evidence in the case.

(Id. at

36).
The record shows that Dr. Tocci examined Plaintiff on July
13, 2011, and conducted IQ testing, which resulted in a Full
Scale IQ score of 48.

Dr. Tocci opined that Plaintiff’s Full

Scale IQ score was valid.
diagnosed

Plaintiff

with

(Id. at 349-51).
Mental

Retardation

Dr. Tocci also
and

noted

that

Plaintiff’s IQ testing, poor academic record, and history of
being fired from jobs supported the diagnosis.7
7

(Id. at 349-50).

Dr. Tocci noted that, during testing, Plaintiff evinced
difficulty understanding and performing simple tasks and that he
was unable to hold directions in his memory long enough to
complete a task.
(Tr. 351).

14

The ALJ rejected the IQ test results and gave Dr. Tocci’s
opinions

“little

inconsistent

with

weight”
the

based

on

the

substantial

fact

evidence

that
in

they

the

were

record,

including Dr. Tocci’s own findings that Plaintiff’s affect was
appropriate, normal, and stable; his mood was “good;” he was
oriented to person; his thought content was appropriate to mood
and circumstances, and he had a logical thought organization.
(Id. at 36, 350).

In addition, Dr. Tocci’s notes reflect that

she relied on Plaintiff’s report that he requires assistance
with his activities of daily living and does not have friends;
however, those statements are inconsistent with his testimony at
the hearing and his statements to the Agency that he has no
problem with his personal care needs, that he prepares simple
meals, that he uses a riding lawnmower to take care of his lawn,
and that he socializes on the weekends with a classmate, his
girlfriend, and his cousin.
In

addition,

Plaintiff’s

diagnosis

of

remaining

substantial

following:
evaluation,

mental

On

(Id. at 54-56, 253-56).

August

Plaintiff

IQ

test

retardation

are

evidence

in

2,

two

2011,

was

score

Dr.

inconsistent

this

case,

weeks

diagnosed

and

with

Tocci’s

with

the

including

the

after

Dr.

ongoing

Tocci’s
alcohol

dependency at the Cahaba Center for Mental Health, where he was
treated for substance abuse by psychiatrist, Dr. Timothy Baltz,
M.D., and his staff.

(Id. at 374-75, 383-84, 387).

15

This is

significant because Dr. Tocci’s opinions were based, in part, on
Plaintiff’s false report that he only drank alcohol “sometimes.”
(Id. at 349).
In

addition,

medical

expert,

Dr.

Sydney

Garner,

Psy.D.,

testified at the hearing that Plaintiff was not functioning in
the range of a person with an IQ score of 48, that Plaintiff’s
past work history and previous functioning (such as driving) did
not support a finding of mental retardation, and that alcohol
use

“could

have

definitely

lowered

interfered with his socialization.

his

[IQ]

(Id. at 65, 69).

score”

and

Dr. Garner

further noted that Plaintiff’s medical records reflect a history
of

exaggeration

of

personality disorder.8
Consistent

with

symptomology,

which

is

a

opinion

is

the

feature

of

(Id.).
Dr.

Garner’s

opinion

of

Plaintiff’s treating psychiatrist, Dr. Baltz, who noted on more
than one occasion that Plaintiff “appears to be exaggerating
symptomology.”

(Id. at 371, 388).

8

Dr. Baltz treated Plaintiff

Dr. Garner opined that Plaintiff suffers from alcohol
dependence, mild depression, and antisocial personality disorder
and stated that Plaintiff has no impairments in maintaining
activities of daily living,
has only mild to moderate
impairments in maintaining concentration, persistence, and pace,
only moderate impairments in maintaining social functioning, and
no episodes of decompensation.
(Tr. 65-66).
Dr. Garner also
opined that Plaintiff would need limited contact with customers,
co-workers, and with the general public, unskilled work
activities, simple, routine, repetitive tasks, simple workrelated decisions, and few workplace changes. (Id.).

16

for almost two years; yet, at no time did he ever indicate that
Plaintiff was mentally retarded.

To the contrary, Dr. Baltz

estimated Plaintiff’s IQ to be in the “low-average range.”9

(Id.

at 371).
Likewise, the opinions of State Agency reviewer, Dr. Ellen
Eno, Ph.D., are inconsistent with the opinions of Dr. Tocci.
Dr. Eno opined that the “claimant’s grades in school and OLSAT
scores suggest a Borderline IQ.
behaviors support this.

His work history and functional

The scores reported by Dr. Tocci are

not supported by the data in the file.”
found

only

moderate

mild

restrictions

difficulties

in

in

(Id. at 365).

activities

maintaining

of

social

daily

Dr. Eno
living,

functioning

and

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

(Id. at 363).

Also, as previously discussed, the evidence of Plaintiff’s
previous

work

history

and

activities

of

daily

living

are

inconsistent with Dr. Tocci’s opinions and Plaintiff’s IQ score.
The evidence reflects that Plaintiff worked from 2005 to 2009 in
approximately eight jobs in various industries as a laborer and
as a machine operator.

(Id. at 51-53, 230, 240-47).

While

Plaintiff reported that he was fired from each of these jobs, he

9

Dr. Baltz diagnosed Plaintiff with Mood Disorder, NOS (somewhat
improved), Anxiety Disorder, NOS, and Selective Mutism features.
(Tr. 371, 385, 388).

17

did

not

contend

that

assigned job tasks.

he

was

not

capable

of

performing

Instead, Plaintiff asserts that

the

he was

fired from one job after he “got into it with a supervisor,” and
he that cannot remember why he was fired from the other jobs.
(Id.

at

living
family,

51-53).
include

Moreover,

Plaintiff’s

socializing
to

going

with

driving

church,

activities

friends,

a

(until

of

daily

girlfriend,
his

license

and
was

suspended because of a DUI), taking care of his own personal
needs, fixing simple meals, operating a riding lawn mower, and
counting change.

(Id. at 50, 54-56, 61-62, 251-56).

this

inconsistent

evidence

is

with

Dr.

Tocci’s

All of

opinions

and

Plaintiff’s Full Scale IQ score of 48.
Finally, the Court finds it instructive that on June 30,
2011,

Dr.

Stephen

Robidoux,

M.D.,

attempted

to

conduct

a

consultative physical examination to evaluate Plaintiff’s claims
of back problems.
became

belligerent

However, Dr. Robidoux reported that Plaintiff
and

would

not

allow

proceed except on Plaintiff’s terms.

the

examination

(Id. at 344-47).

to
Dr.

Robidoux’s notes reveal that Plaintiff was fully in control of
his examination; he had no difficultly articulating his demands;
and

he

was

functioning

well

above

the

expectations

individual with a Full Scale IQ score of 48. 10

10

of

an

Dr. Robidoux

Dr. Robidoux documented the following statement by Plaintiff:
“In 2006 or 2007 or 2008, I was working in a warehouse lifting
18

diagnosed

Plaintiff

(Id. at 346).

with

“sociopathic

personality

disorder.”

This evidence supports the ALJ’s finding that

Plaintiff is functioning above the range of an individual with a
Full Scale IQ score of 48 and that his IQ is more consistent
with

borderline

intellectual

functioning

than

mental

retardation.11
The Court is aware, as was the ALJ, of Plaintiff’s poor
academic performance in school, his special education classes,
and the letter from Plaintiff’s former teacher, Callie Sanders,
stating that Plaintiff struggled in school and that it was her
50 to 100 pound boxes and my back WENT OUT[.] That’s it[.] MY
BACK WENT OUT[.] [W]hat else do you need to know??” (Tr. 344).
Dr. Robidoux documented that Plaintiff became very belligerent
when asked the meaning of “his back went out,” and refused to
answer.
Dr. Robidoux called Plaintiff’s disability specialist
on the telephone and had her speak to Plaintiff.
Thereafter,
Plaintiff resumed his tirade, stating: “Then I fell down,
doesn’t everybody whose back goes out? I don’t know how you got
your license.
I went by car the next day to a doctor in
Birmingham. I don’t know his name. He x-rayed me and ran tests.
Then he gave me medicine.
I haven’t been to a doctor for my
back since then.
I haven’t been to anyone else.
No
chiropractor, no physical therapy, no back surgery, no epidural
shots.
I don’t know what a CT or MRI scan is.
I told you he
did x-rays and tests.” (Id.).
When Dr. Robidoux then tried to
conduct the physical examination, Plaintiff told him, “I will
tell you what you can look at.” (Id. at 345). Dr. Robidoux was
required to ask permission, and have permission granted, to
examine each body system. (Id.). Plaintiff refused many parts
of the examination.
11

Dr. Eno agreed with Dr. Robidoux that the evidence suggests “a
Borderline IQ combined with a Personality Disorder.” (Tr. 365).
Dr. Eno concluded that, “[t]he personality problems displayed in
Dr. Robidoux[’s] evaluation make retesting for a more valid IQ
unproductive.” (Id.).

19

opinion that “mentally he is not cable (sic) of holding a job.” 12
(Id.

at

219,

274,

287).

However,

as

the

ALJ

found,

even

considering this evidence, the substantial evidence reflects a
level of functioning that is higher than Plaintiff’s Full Scale
IQ score of 48 would indicate and that is more consistent with
borderline intellectual functioning than mental retardation.
Based on the foregoing, the Court finds that the ALJ had
good

cause

to

reject

the

opinions

and

IQ

test

results

of

consultative psychologist, Dr. Tocci, as being inconsistent with
the substantial evidence in the case.

In addition, the Court

finds that substantial evidence in this case supports the ALJ’s
finding that Plaintiff did not meet Listing 12.05B because (1)
the IQ test score was invalid, and (2) even assuming a valid
score,

the

evidence

of

Plaintiff’s

work

history,

medical

records, and activities of daily living rebuts the presumption
of

mental

Plaintiff
(heavy,

retardation
can

perform

unskilled)

unskilled)

and,

and

supports

his

and
thus,

past

as
is

a

work
fish

not

the
as

ALJ’s
a

finding

lumberyard

machine
disabled.

that
helper

feeder

(medium,

(Tr.

33-38).

Accordingly, Plaintiff’s claim must fail.

12

The ALJ properly considered Ms. Sanders’ opinion in accordance
with SSR 06-03p but held that her opinion was not based on
objective facts or data and that her opinion, which was more
properly reserved for the Commissioner, was, in any event,
inaccurate given the evidence in the case. (Tr. 34).

20

B.

Next,

Whether
the
hearing
transcript
is
adequate for the Court to review the
case?

Plaintiff

administrative

argues

hearing

that

shows

the

that

transcript

there

were

of

his

significant

problems with sound quality during the hearing, resulting in an
incomplete hearing transcript of portions of the Plaintiff’s and
the

experts’

testimony.

(Doc.

8

at

11).

The

Commissioner

counters that, while some portions of the audio recording of the
hearing were inaudible, the transcript is sufficient to allow
the

Court’s

reviewed

the

review.
record

(Doc.
in

11

this

at

14-17).

case,

the

Having
Court

carefully

agrees

that

Plaintiff’s claim is without merit.
The Court recognizes that the ALJ “has a duty to develop a
full and fair record.”

George v. Astrue, 338 Fed. Appx. 803,

805 (11th Cir. 2009) (quoting Brown v. Shalala, 44 F.3d 931, 934
(11th Cir. 1995)).

Nonetheless, an ALJ’s failure to fulfill his

duty to fully develop the record “only necessitates a remand if
‘the record reveals evidentiary gaps which result in unfairness
or clear prejudice.’”

Mosley v. Acting Commissioner of Soc.

Sec. Admin., 2015 U.S. App. LEXIS 21193, *7, 2015 WL 8105166, *3
(11th Cir. Dec. 8, 2015) (quoting Brown, 44 F.3d at 935).

“In

other words, ‘there must be a showing of prejudice before we
will find that the claimant’s right to due process has been
violated to such a degree that the case must be remanded to the

21

[ALJ]

for

further

development

Brown, 44 F.3d at 935).

of

the

record.’”

Id.

(quoting

“Prejudice requires a showing that ‘the

ALJ did not have all of the relevant evidence before him in the
record (which would include relevant testimony from claimant),
or that the ALJ did not consider all of the evidence in the
record

in

reaching

his

decision.’”

Id.

(quoting

Kelley

v.

Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)).
In this case, Plaintiff points to inaudible portions of the
testimony

of

the

medical

expert,

Dr.

Garner,

related

to

Plaintiff’s IQ test scores and the question of whether Plaintiff
met or equaled a listing.

(Doc. 8 at 11).

In the selected

passage, Dr. Garner made it clear that Plaintiff did not meet or
equal a listing, and, while it is unclear precisely to what he
was referring when he said, “they’re just not valid,” it seems
reasonable given his discussion of Plaintiff’s IQ test results
in

the

previous

sentences

that

he

was

invalidity of Plaintiff’s IQ test scores.

referring

(Id. at 65).

to

the

Indeed,

Dr. Garner specifically stated that Plaintiff had IQ scores in
the 40’s and 50’s and that he did not believe that Plaintiff was
functioning in that range.

(Id. at 65).

Similarly, Plaintiff points to Dr. Garner’s discussion of
Plaintiff’s school records and argues that inaudible portions of
Dr.

Garner’s

testimony

(Doc. 8 at 12).

make

that

passage

incomprehensible.

To the contrary, it is apparent to the Court

22

that

Dr.

Garner

was

testifying

that

Plaintiff’s

test

score,

which he described as “a 78,” was a reference to the 78 that
Plaintiff scored on the Otis Lennon School Ability Test (OLSAT),
a test score that Dr. Eno likewise found significant in her
Psychiatric Review Technique. 13

(Id. at 288, 365).

Dr. Garner

testified that this test score was inconsistent with a diagnosis
of mental retardation, as was Plaintiff’s level of functioning
and his work history.

(Id. at 66).

Last, Plaintiff refers to inaudible gaps in the testimony
of the VE related to a hypothetical posed by the ALJ.
at 12).

(Doc. 8

While it is unclear precisely which restrictions the

ALJ posited in the second, partially inaudible hypothetical, the
ALJ’s decision reveals that he relied on the VE’s testimony
related to the first hypothetical, which was fully recorded.
(Id. at 38, 76-77).

Therefore, Plaintiff’s argument related to

the second hypothetical, which was not relied upon by the ALJ,
is unavailing.
Having reviewed the transcript at length, the Court finds
that, despite the court reporter’s designations of some portions
of

the

neither

transcript
incomplete

as

“inaudible,”

nor

inadequate.

the

record
To

the

as

a

whole

contrary,

is
the

passages referenced by Plaintiff contain some missing words but
13

Dr. Eno opined that a 78 on the OLSAT suggested a borderline
IQ. (Tr. 365).

23

are

still

capable

demonstrate

of

unfairness

reasonable
or

interpretation

prejudice

to

and

the

do

not

Plaintiff.

Accordingly, Plaintiff’s claim is without merit.
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 28th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

24