Moore v. Colvin

Filing 22

Order that the decision of the Commissioner of Social Security denying plaintiff's benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/29/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LATROY MOORE,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 15-00070-B

ORDER
Plaintiff
judicial

review

LaTroy
of

a

Moore
final

(hereinafter
decision

of

“Plaintiff”)
the

seeks

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. 19).

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 August 16,

2011.

(Tr.

166-68).

Plaintiff

alleged

that

he

has

been

disabled since December 30, 2009, due to “right knee, right leg,
right ankle, [and] depression.” (Id. at 209, 214).

Plaintiff

did not allege any intellectual limitations in his disability
applications, nor did he claim any intellectual limitations at
his hearing.1

(Id. at 48, 214, 408).

Plaintiff’s
request,

he

was

applications
granted

were

an

denied

and

timely

hearing

administrative

upon

before

Administrative Law Judge Mary E. Helmer (hereinafter “ALJ”) on
May 8, 2013.
his

counsel

impairments.

(Id. at 48).
and

provided

(Id. at 51).

Plaintiff attended the hearing with
testimony

related

to

his

physical

A vocational expert (“VE”) also

appeared at the hearing and provided testimony.

(Id. at 60).

On June 13, 2013, the ALJ issued an unfavorable decision finding
that Plaintiff is not disabled.

(Id. at 37).

The Appeals

Council denied Plaintiff’s request for review on December 16,
2014.

(Id. at 1-2).

Therefore, the ALJ’s decision dated June

13, 2013, became the final decision of the Commissioner.
Having

exhausted

his

administrative

1

remedies,

Plaintiff

After
Plaintiff’s
administrative
hearing,
his
attorney
submitted a report from Dr. Donald Blanton, Ph.D., containing a
diagnosis of mild mental retardation and a Full Scale IQ score
of 62. (Tr. 408-09).

2

timely filed the present civil action.

(Doc. 1).

The parties

waived oral argument on October 9, 2015 (Doc. 18), and agree
that this case is now ripe for judicial review and is properly
before

this

Court

pursuant

to

42

U.S.C.

§§

405(g)

and

1383(c)(3).
II.

Issues on Appeal
1. Whether the ALJ erred in failing to find
that Plaintiff meets the criteria for
Listing 12.05C and in rejecting the
opinion and diagnosis of Plaintiff’s
consulting
psychologist,
Dr.
Donald
Blanton, Ph.D.?
2. Whether the ALJ erred in rejecting the
opinion
of
Plaintiff’s
treating
physician, Dr. Perry Timberlake, M.D.
regarding the severity of Plaintiff’s
pain and physical limitations?

III. Factual Background
Plaintiff was born on March 15, 1976, and was thirty-seven
years of age at the time of his administrative hearing on May 8,
2013.

(Tr. 48, 209).

Plaintiff testified that he was enrolled

in special education classes in high school and was unable to
pass the high school graduation exam, but that he completed the
twelfth grade.

2

(Id. at 265, 359).

certificate of graduation.

Plaintiff received his

(Id. at 265).

2

Plaintiff testified that he took the high school graduation
exam three times but could not pass it. (Tr. 54). The record
also shows that Plaintiff repeated the fifth grade.
(Id. at
359).

3

According to Plaintiff’s Disability Report, he last worked
as

a

brick

mason

helper

for

various

contractors

approximately eleven years, from 1995 to 2006.
359).

In addition, he mowed lawns.

Plaintiff

testified

that

he

for

(Id. at 51, 201,

(Id. at 60, 207).
injured

his

knee

playing

football, that he has had knee problems his whole life, and that
he can no longer work because of his knee and ankle pain and
swelling.

(Id. at 52-54, 284).

torn right lateral meniscus.

An MRI taken in 2009 revealed a

(Id. at 54, 287).

Plaintiff did

not have surgery because he could not afford it.

(Id.).

His

treatment has consisted of injections, draining fluid off of his
knee

once,

and

medications

make

pain
him

medications.
drowsy,

and

approximately three hours each day. 3

(Id.
he

has

at

56,

to

lay

(Id. at 57-58).

59).
down

His
for

Plaintiff

reported that he has never sought mental health care because he
had “no reason” to do so.

(Id. at 358).

Plaintiff testified that he lives alone in a mobile home
and

that

shopping.

his

mother

does

all

(Id. at 52, 58).

of

his

cooking,

cleaning,

and

He can walk half of a football

field, can stand for five minutes, and has problems sitting.
(Id. at 57).

In his Function Report, Plaintiff stated that he

can take care of his personal needs such as bathing, feeding,
3

Plaintiff’s
current medications include Lortab (for pain),
Amitriptyline
(for
nerves
and
sleep),
Prednisone
(for
arthritis), and Celebrex (for arthritis). (Tr. 56, 266).
4

and using the toilet, but needs help shaving.

(Id. at 237).

He

does not use any assistive devices, such as a cane or walker.
(Id. at 242).
Plaintiff stated that he can count change but cannot pay
bills or handle a savings account or a check book; he can pay
attention for about thirty minutes; he does not follow written
instructions well and cannot handle stress well; and

he has

never been fired from a job because of problems getting along
with other people.

(Id. at 239, 241-42).

He has a driver’s

license, which he obtained after taking the written driving test
five times, but he no longer drives because he has nothing to
drive.

(Id. at 54, 239).

books and writing poetry.
IV.

He enjoys reading newspapers and

(Id. at 359, 409).

Analysis
A.

Standard of Review

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

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

4

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
4

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

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.

must

be

Brown v.

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

404.1505(a),

U.S.C.

§§

416.905(a).

423(d)(1)(A);
The

6

see

Social

also

20

Security

C.F.R.

§§

regulations

provide

a

five-step

sequential

evaluation

process

determining if a claimant has proven his disability. 5

for

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since December
30, 2009, the alleged onset date, and that he has the severe
impairments of obesity and right knee meniscus tear.

(Tr. 35).

The ALJ further found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals any
5

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

of

the

listed

impairments

Subpart P, Appendix 1.
The

ALJ

contained

in

20

C.F.R.

Part

404,

(Id. at 38).

concluded

that

Plaintiff

retains

the

residual

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

work,

except

that

“he

should

be

allowed

to

alternate

between sitting and standing positions every sixty minutes;” he
“cannot operate foot controls with his right leg;” he “cannot
climb ladders, ropes, or scaffolds.

Kneel, crouch, or crawl;”

he “should not be exposed to vibration, unprotected heights, or
hazardous

machinery;”

routine,

and

he

repetitive

decisions,

and

being

changes.”

“is

limited

tasks,

exposed

(Id. at 38).

to

making

to

few,

performing

simple,
if

simple,

work-related

any,

work

place

The ALJ also determined that while

Plaintiff’s medically determinable impairments could reasonably
be

expected

to

produce

the

alleged

symptoms,

his

statements

concerning the intensity, persistence and limiting effects of
the alleged symptoms are only partially credible for the reasons
explained in the decision.

(Id. at 40).

Given Plaintiff’s RFC, the ALJ found that Plaintiff is not
capable of performing his past work as a brick mason helper
(heavy,

semi-skilled),

lawn

mower

(medium,

semi-skilled),

construction laborer (very heavy, unskilled), or fish cleaner
(medium,
testimony

unskilled).
of

a

VE,

(Id.
the

at
ALJ

8

40).

However,

concluded

utilizing

that

the

considering

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

also

other

Plaintiff

is

facility
which

able

rental

are

jobs

existing

to

perform,

clerk,”

classified

in

as

and

the

such

national
as

“cashier”,

“self-service

light

and

economy

“storage

attendant,”

unskilled.

that

(Id.

all
at

Thus, the ALJ concluded that Plaintiff is not disabled.

of

41).

(Id. at

42).
The

Court

now

considers

the

foregoing

in

light

of

the

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

Issues

A. Whether the ALJ erred in failing to find
that Plaintiff meets the criteria for
Listing 12.05C and in rejecting the
opinion and diagnosis of Plaintiff’s
consulting
psychologist,
Dr.
Donald
Blanton, Ph.D.?
In

this

case,

Plaintiff

argues

that

the

ALJ

erred

in

failing to find that he meets the criteria for Listing 12.05C
(mental

retardation),

opinion

of

Dr.

that

Donald

the

Blanton,

ALJ

erred

Ph.D.,

in

rejecting

the

that

Plaintiff

has

deficits in adaptive functioning in the areas of communication,
work,

use

of

community

resources,

and

functional

academic

skills, and that the ALJ erred in rejecting the diagnosis of Dr.

9

Blanton that Plaintiff is mildly mentally retarded. 6

According

to Plaintiff, his Full Scale IQ score of 62, combined with Dr.
Blanton’s diagnosis of mild mental retardation and opinion that
Plaintiff

has

deficits

cognitive

criteria

in

of

Listing

(Doc. 12 at 2-3, 11).
did

not

err

cognitive

in

functioning,

12.05C

(mental

satisfy

the

retardation).

The Commissioner counters that the ALJ

finding

criteria

adaptive

for

that

Plaintiff

Listing

does

12.05C

not

because

satisfy

Dr.

the

Blanton’s

opinions are inconsistent with the substantial evidence in the
case and, thus, properly discredited, and because Plaintiff’s
Full Scale IQ score of 62 is not an accurate reflection of his
capabilities.

To

the

contrary,

Defendant

argues,

the

substantial evidence (such as Plaintiff’s work history of semiskilled employment and his activities of daily living, which
include reading books and newspapers and writing poetry) reflect
adaptive

functioning

indicate.
Plaintiff

(Doc.
does

functioning

15

not

needed

much
at

have
to

higher
9-10).
the

meet

than

his

Thus,

Defendant

requisite

the

criteria

IQ

deficits
of

score

would

maintains,
in

adaptive

12.05C.

(Id.).

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

order

for

Plaintiff

to

6

meet

Listing

12.05C

(mental

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

10

retardation), he must present evidence of “[a] valid verbal,
performance or full scale IQ of 60-70 and a physical or other
mental impairment imposing an additional and significant workrelated limitation of function.”7
Appendix

1

§

12.05(C).

In

20 C.F.R. Part 404, Subpart P,

addition,

he

must

satisfy

the

“diagnostic description” of mental retardation in Listing 12.05
(the

listing

category

for

mental

retardation/intellectual

disability), 8 which provides that mental retardation “refers to

7

For purposes of Listing 12.05C, the second prong requirement is
met once there is a finding that the claimant has an additional
severe impairment because the requirement of “significant workrelated limitation of function” “involves something more than
‘minimal’ but less than ‘severe.’” Johnson v. Colvin, 2014 U.S.
Dist. LEXIS 13497, *7, 2014 WL 413492, *3 (S.D. Ala. Feb. 3,
2014) (quoting Edwards by Edwards v. Heckler, 755 F.2d 1513,
1515 (11th Cir. 1985)). In this case, the ALJ found Plaintiff’s
obesity and right knee meniscus tear to be severe, and the
parties do not dispute that finding. (Tr. 35). Therefore, the
second prong of Listing 12.05C, requiring a physical or other
mental impairment imposing an additional and significant workrelated limitation of function, is not in dispute in this
action.

8

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

11

significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the
developmental

period;

i.e.,

the

evidence

demonstrates

supports onset of the impairment before age 22.”
404,

Subpart

P,

Appendix

1,

§§

12.05;

see

or

20 C.F.R. Part

also

Perkins

v.

Commissioner, Soc. Sec. Admin., 553 F. Appx. 870, 873 (11th Cir.
2014) (Listing 12.05(C) “requires a showing that the claimant
meets

the

diagnostic

criteria

of

Listing

12.05,

including

deficits in adaptive functioning; a qualifying IQ score; onset
before

age

22;

and

the

requisite

deficits

in

work-related

functioning.”).
The law in this Circuit provides that a valid IQ score of
60-70

creates

a

rebuttable

presumption

that

the

claimant

manifested deficits in adaptive functioning prior to the age of
twenty-two.

See Hodges v. Barnhart, 276 F. 3d 1265, 1268-69

(llth Cir. 2001).

Thus, “a claimant meets the criteria for

presumptive disability under section 12.05C when the claimant
presents a valid I.Q. score of 60 to 70 inclusive, and evidence
of an additional mental or physical impairment that has more
than a ‘minimal effect’ on the claimant’s ability to perform
basic work activities.”

Smith v. Commissioner of Soc. Sec., 535

Fed. Appx. 894, 897 (llth Cir. 2013)(quoting Lowery v. Sullivan,
979 F. 2d 835, 837 (11th Cir. 1992)).
The presumption under 12.05C can be rebutted, however, when

12

the

IQ

score

is

inconsistent

with

record

evidence

claimant’s work history, daily activities, and behavior. 9

9

of

a
See

In addressing the “adaptive functioning” aspect of Listing
12.05C, the Eleventh Circuit has sustained the rejection of
claims under this Listing where the claimant’s IQ score was
significantly inconsistent with his/her adaptive functioning,
despite a qualifying IQ score.
For example, in Perkins v.
Commissioner, Soc. Sec. Admin., 553 Fed. Appx. 870 (llth Cir.
2014), the Eleventh Circuit upheld the ALJ’s finding that
Listing 12.05C was not met where the plaintiff performed skilled
jobs, including as a skilled cook, managed other workers, and
made contradictory claims regarding his education and employment
history.
Also, in Hickel v. Commissioner, 539 Fed. Appx. 980,
984 (llth Cir. 2013), the Eleventh Circuit held that the ALJ did
not err where he acknowledged that the claimant had a valid IQ
score between 60 and 70, applied the presumption established by
Hodges v. Barnhart, 276 F. 3d 1265, 1268-69 (llth Cir. 2001),
and found that the presumption was rebutted by other evidence
that showed that the claimant did not have “deficits in adaptive
functioning.” In reaching that decision, the court noted that,
although the claimant had been enrolled in special education
classes, she worked part-time in a nursery, was a high school
graduate, prepared simple meals, dressed herself, drove herself
to work, attended church regularly, and socialized with friends.
Id. at 984-985. See also Popp, 779 F.2d at 1499-1500 (affirming
finding that Listing 12.05C was not met where the plaintiff had
worked skilled jobs, obtained a college degree, and had
exaggerated his deficits when examined); White v. Colvin, 2015
U.S. Dist. LEXIS 28277, 2015 WL 1013117, *4 (S.D. Ala. Mar. 9,
2015) (The ALJ properly found that, despite a Full Scale IQ
score of 63, the plaintiff did not have significant limitations
in adaptive functioning where the record reflected that,
although the plaintiff had been in special education classes, he
lived alone, maintained his financial affairs, and consistently
worked at several different jobs); Robinson v. Colvin, 2015 U.S.
Dist. LEXIS 43338, 2015 WL 1520431, *11 (S.D. Ala. Apr. 2, 2015)
(where the plaintiff lived independently without a highly
supportive living arrangement, cared for her personal needs, and
had a significant work history, the ALJ properly found that her
Full Scale IQ score of 60 was inconsistent with the record
evidence regarding her daily activities); Johnson, 2014 U.S.
Dist. LEXIS 13497, 2014 WL 413492, at *4 (although the ALJ never
stated that the claimant failed to meet Listing 12.05C, the
ALJ’s finding that, despite a Full Scale IQ score of 62, the
13

Popp v. Heckler, 779 F.2d 1497, 1499-1500 (llth Cir. 1986).
Indeed, neither a diagnosis of mental retardation nor a valid IQ
score is conclusive of mental retardation where the diagnosis
and

IQ

score

are

inconsistent

with

other

record

evidence

regarding the claimant’s daily living activities and behavior.
See

Robinson,

2015

U.S.

Dist.

LEXIS

43338

at

1520431 at *11; Perkins, 553 Fed. Appx. at 873-74.

*32,

2015

WL

Accordingly,

the ALJ is tasked with determining whether there is sufficient
evidence

(relating

presumption.

to

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

claimant had high adaptive skills, i.e., he had the capacity to
take care of his own needs, perform activities of daily living,
and had successfully performed four different jobs since leaving
high school, was sufficient to support his decision that the
claimant was not mentally retarded); Lyons v. Astrue, 2009 U.S.
Dist. LEXIS 128950 (M.D. Fla. May 24, 2009), adopted by 2009
U.S. Dist. LEXIS 48535, 2009 WL 1657388 (M.D. Fla. June 10,
2009)(The ALJ’s finding that the claimant did not meet Listing
12.05(C) was supported by substantial evidence that demonstrated
that the claimant had a high school diploma, was not in special
education classes, completed his own social security forms, and
had earnings from 1983 – 1990 between $13,696 and $18,408 per
year).

14

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).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

good

medical

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.”
764

F.2d

834,

835

(11th

Cir.

1985)

(per

Sryock v. Heckler,
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 the present case, Plaintiff has presented a diagnosis of
mild mental retardation from examining psychologist Dr. Blanton,
as well as Dr. Blanton’s opinion that Plaintiff has deficits in
adaptive functioning due to mental retardation that manifested

15

prior to age 22 in the areas of “communication, work, use of
community resources, [and] functional academic skills.”
409).

However,

inconsistent

with

as

the

Dr.

ALJ

Blanton’s

found,
own

these

(Tr.

opinions
including

findings,

are
his

notations in his evaluation notes that Plaintiff’s “thoughts and
conversations were simple but logical;” his “[a]ssociations were
intact;” his “affect was flat but appropriate;” “[n]o confusion
was noted;” he was “obsessing about his pain;” he was “alert and
oriented

to

time,

place,

person,

and

situation;”

and

judgment was good for work and financial type decisions.”
at 408).
activities

“[h]is
(Id.

In addition, Dr. Blanton documented that Plaintiff’s
of

daily

living

include

living

alone,

having

a

drivers license, being able to shop and handle his own money,
going

to

church,

Also,

while

Dr.

and

reading

Blanton

the

opined

newspaper.
that

(Id.

Plaintiff

at

has

409).
marked

limitations in his ability to “understand detailed or complex
instructions,

carry

out

detailed

or

complex

instructions,

remember detailed or complex instructions, [and] use judgment in
detailed or complex work-related decisions” (emphasis added), he
did not find similar limitations with respect to simple, routine
instructions or decisions.10

(Id. at 410).

10

The Court notes that Dr. Blanton also opined that
likely to deteriorate emotionally if [he] is
additional stress[,] especially that of a job.”
Dr. Blanton appears to base this opinion on a
16

Plaintiff “is
placed under
(Tr. 409-10).
diagnosis of

In addition to being inconsistent with his own findings,
Dr.

Blanton’s

substantial
Plaintiff

opinions

evidence
reported

are

inconsistent

in

this

to

case,

the

with

including

Agency

that

the
the

he

remaining
following:

worked

for

approximately eleven years (from 1995 to 2006) in semi-skilled
jobs (id. at 51, 60, 201, 207, 359).

Plaintiff reported to both

consultative psychologists Dr. Blanton and Dr. Reynolds that he
enjoys reading newspapers and books and writing poetry (id. at
359, 409).
personal

Plaintiff lives alone and takes care of his own

needs.

(Id.

at

52,

58,

237).

Although

it

took

multiple attempts, Plaintiff completed the written driving test
and has a driver’s license and is able to drive.
239).
did

Plaintiff was enrolled in special education classes and

not

pass

the

high

school

graduation

successfully completed the twelfth grade.
In

(Id. at 54,

addition,

psychological

consultant,

Dr.

exam;

however,

he

(Id. at 265, 359).
Richard

Reynolds,

Ph.D., examined Plaintiff on October 31, 2011, and documented
that Plaintiff reported last working in 2009 and doing masonry
work (semi-skilled work) for years.

(Id. at 359).

Plaintiff

depression.
(Id.).
However, his own testing conducted during
his consultative evaluation of Plaintiff on May 1, 2013,
revealed that Plaintiff was only “moderately” depressed, which
does not support the severity of limitations expressed in this
opinion.
In any event, whether based on the diagnosis of
depression or the diagnosis of mild mental retardation, this
opinion is inconsistent with the substantial evidence in this
case, as discussed herein.

17

also reported to Dr. Reynolds that he “conducts [his] activities
of daily living without assistance,” that he has friends and
gets

together

with

his

friends

regularly,

that

he

attends

church, that he has never sought mental health treatment because
there is “no reason,” and that his primary reason for seeking
disability is problems with his right knee and ankle.
358-60).

(Id. at

While Dr. Reynolds noted that Plaintiff’s answers to

some questions that he posed were inconsistent with a person who
had graduated from high school, he nonetheless observed that
Plaintiff was cooperative, alert, and oriented to all spheres,
that his speech was within normal limits, that his behavior was
unremarkable, that his thought content was logical, that his
thought

associations

were

tight,

that

his

insight

appropriate, and that his judgment was appropriate.
359-60).

was

(Id. at

Dr. Reynolds opined that Plaintiff “likely presents

with no deficits in ability [to] understand and remember,” that
“[h]e may have mild difficulty in carrying out instructions due
to Major Depressive Disorder,” that he is likely to have mild
difficulties

in

responding

appropriately

to

supervisors,

co-

workers, and the public, or work stressors, in a work setting
due to issues[/]problems related to Major Depressive Disorder
and Generalized Anxiety Disorder,” and that Plaintiff “would not
need assistance with any awarded funds.”
added).

18

(Id. at 360) (emphasis

Based on the foregoing, the Court finds that Dr. Blanton’s
opinions related to Plaintiff’s deficits in adaptive functioning
are inconsistent with the substantial evidence in this case,
including Plaintiff’s work history, Plaintiff’s activities of
daily

living,

and

the

medical

opinions

of

consultative

psychologist Dr. Reynolds.

Therefore, they were properly given

“little weight” by the ALJ.

(Id. at 37, 410).

The Court has considered Plaintiff’s evidence that he was
in special education classes in high school, that he failed the
high school graduation examination after taking it three times,
that he repeated the fifth grade, and that his math, reading,
and spelling scores on tests conducted by Dr. Blanton were on
the fourth and fifth grade levels.
However,

given

the

substantial

(Doc. 12 at 2-3, 9-11).

evidence

in

this

case

that

Plaintiff’s adaptive functioning is well above that of a person
with mild mental retardation, the Court finds that the ALJ’s
rebuttal of the Hodges presumption is supported by substantial
evidence.

See Johnson, 2014 U.S. Dist. LEXIS 13497, 2014 WL

413492, *4

(S.D. Ala. Feb. 3, 2014)(where claimant had a Full

Scale IQ score of 62, placing him in the range of mild mental
retardation,

and

tested

at

the

fourth

grade

level

in

math,

reading and spelling, the ALJ’s finding that claimant had high
adaptive skills, including the capacity to take care of his own
needs,

perform

activities

of

daily

19

living,

and

successfully

perform

four

different

jobs

after

leaving

high

school,

was

sufficient to support the decision that the claimant did not
meet

the

requirements

for

Listing

12.05C).

Accordingly,

Plaintiff’s claim must fail.
B. Whether the ALJ erred in rejecting the
opinion
of
Plaintiff’s
treating
physician, Dr. Perry Timberlake, M.D.
regarding the severity of Plaintiff’s
pain and physical limitations?
Plaintiff also argues that the ALJ erred in rejecting the
opinions of his treating physician, Dr. Perry Timberlake, M.D.,
that

he

is

unable

to

work

because

of

his

problems, knee problems, and associated pain.
14).

upper

extremity

(Doc. 12 at 13-

The Commissioner counters that the ALJ did not err in

rejecting Dr. Timberlake’s opinions because those opinions are
inconsistent with the substantial evidence in this case.
15 at 11).

(Doc.

Having carefully reviewed the record in this case,

the Court agrees that Plaintiff’s claim is without merit.
Generally speaking, “[i]f a treating physician’s opinion on
the nature and severity of a claimant’s impairments is wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques, and is not inconsistent with the other
substantial

evidence

in

the

record,

20

the

ALJ

must

give

it

controlling weight.” 11
(11th

Cir.

2007)

Roth v. Astrue, 249 Fed. Appx. 167, 168

(citing

20

C.F.R.

§

404.1527(d)(2)).

“An

administrative law judge must accord substantial or considerable
weight to the opinion of a claimant’s treating physician unless
good cause is shown to the contrary.”

Broughton v. Heckler, 776

F.2d 960, 961 (11th Cir. 1985)(citations and internal quotation
marks omitted).
As

discussed

above,

“[t]he

requisite

‘good

cause’

for

discounting a treating physician’s opinion may exist where the
opinion is not supported by the evidence,” “where the evidence
supports a contrary finding,” or where the doctor’s opinions are
merely conclusory or inconsistent with the doctor’s own medical
records.
3155570

Hogan, 2012 U.S. Dist. LEXIS 108512 at *8, 2012 WL
at

*3.

“[T]he

weight

afforded

a

treating

doctor’s

opinion must be specified along with ‘any reason for giving it
no

weight,

and

failure

to

do

so

is

reversible

error.’”

Williams, 2009 U.S. Dist. LEXIS 12010 at *4, 2009 WL 413541 at
*1.
In this case, the ALJ found that Plaintiff has the severe
impairments of obesity and right knee meniscus tear; however,
the ALJ found, Plaintiff is able to perform a range of light

11

“Controlling weight” is defined as a medical opinion from a
treating source that must be adopted. See SSR 96–2P, 1996 SSR
LEXIS 9, *3, 1996 WL 374188, *1 (1996).

21

work,

with

restrictions,

such

as

being

allowed

to

alternate

between sitting and standing positions every sixty minutes, not
operating foot controls with his right leg, and no climbing,
kneeling, crouching, or crawling.

(Id. at 35, 38, 40-41).

As

Plaintiff points out, the ALJ assigned “very little weight” to
the opinions of his treating physician, Dr. Timberlake, that
Plaintiff

cannot

engage

in

any

form

of

gainful

employment

because of upper extremity problems, right knee problems, and
associated pain.

(Id. at 40, 393-94, 397).

Having reviewed the

record at length, the Court finds that Dr. Timberlake’s opinions
are inconsistent with the substantial evidence in this case and,
thus, were properly discredited by the ALJ.
The record reveals that on April 25, 2012, Dr. Timberlake
completed

a

Plaintiff’s

Clinical
pain

Assessment
is

of

Pain

“intractable”

form

opining

and

that

“virtually

incapacitating,” that physical activity would increase his pain
to an extent that bed rest would be necessary, and that his
medication would place severe limitations on even the simplest
of tasks.

(Id. at 393).

Timberlake

opined

in

a

In addition, on that same date, Dr.
Medical

Source

Statement

(Physical)

(“MSS”) that Plaintiff can sit and stand/walk for only one hour
in an eight-hour workday, can lift/carry no more than one pound
frequently and five pounds occasionally, can never climb, bend,
or reach overhead, can rarely grasp or handle, and can rarely

22

push or pull with his arms or legs.

(Id. at 394).

Also, in his

treatment notes dated February 3, 2012, Dr. Timberlake noted,
“this patient is completely and totally disabled to do gainful
work now or in the future.”

(Id. at 397).

As the ALJ found, although Dr. Timberlake treated Plaintiff
from August 2009 to the date of the hearing in May 2013, his
opinions, which render Plaintiff unable to sit, stand, or walk
for more than one hour a day and unable to lift or carry more
than

one

pound

frequently,

are

inconsistent

with

Dr.

Timberlake’s own treatment notes, which do not document this
severe

level

of

functional

limitations.

12

For

example,

as

stated, Dr. Timberlake opined in the Medical Source Statement
(Physical) that Plaintiff can lift/carry no more than one pound
frequently and five pounds occasionally, can rarely grasp or
handle with his fingers, can rarely push or pull with his arms,
and can never reach overhead.

(Id. at 394).

However, at the

time that Dr. Timberlake rendered those opinions on April 25,
2012, he had never noted complaints by Plaintiff regarding his
upper extremities, with the one exception of a single reference
to Plaintiff complaining of right hand pain on August 8, 2012.
(Id.

at

rendered

380-97,
these

412-20).

opinions,

Two
the

years

record

12

after

shows

Dr.

that

Timberlake

in

The ALJ found Dr. Timberlake’s opinions to be
inconsistent” with the objective evidence. (Tr. 40).

23

July

and

“grossly

September,
shoulder

2014,
pain,

Hydrocodone,

Plaintiff
for

complained

which

Cymbalta,

Dr.

and

of

bilateral

Timberlake

Celebrex.

treated

(Id.

at

arm

and

him

with

10-12).

In

addition, Dr. Timberlake’s opinions regarding the severity of
Plaintiff’s

knee

contemporaneous

problems
note

in

and

the

pain

MSS

are

that

Plaintiff

assistive device to ambulate (id. at 394).
Timberlake’s

opinions

(including

contradicted

by

his

requires

no

Moreover, all of Dr.

Plaintiff’s

severe

and

disabling limitations in both his upper and lower extremities)
are inconsistent with Plaintiff’s own statements that he lives
alone, that he takes care of all of his own personal care needs,
and that he conducts his activities of daily living without
assistance.

(Id. at 237, 359).

Dr. Timberlake’s opinions are also inconsistent with the
remaining medical evidence in this case, including the treatment
notes of orthopedist, Dr. Anthony Tropeano, M.D., who treated
Plaintiff

on

August

31,

2009,

for

right

knee

pain.

Dr.

Tropeano’s notes reflect that he ordered an MRI, which showed a
lateral

meniscus

Plaintiff
treatment.

ever

tear;
returned

however,
to

(Id. at 284-87).

Dr.

it

does

not

appear

Tropeano

for

any

that

further

Although Plaintiff testified that

Dr. Tropeano wanted to perform surgery to repair the knee and
that Plaintiff could not afford it, there is no notation in Dr.
Tropeano’s records or any other physician’s records (including

24

Dr. Timberlake’s) recommending surgery.
In

addition,

consultative

(Id. at 54).

physician,

Dr.

John

Mitchell,

M.D., examined Plaintiff two years later, on October 28, 2011,
and noted full range of motion in upper extremities (“arms,
hands, and fingers”), normal dexterity, normal grip strength,
normal

balance,

“mild”

limp

on

right

leg,

reduced

range

of

motion and tenderness over the right knee, “mild crepitus” upon
flexion

of

the

right

knee,

normal

heel/toe

reflexes, and no assistive device used.

walk,

normal

(Id. at 350-54).

Dr.

Mitchell concluded “need further work up for his right knee
pain.”

(Id. at 355).

As the ALJ found, the record shows that Plaintiff suffers
from the severe impairment of a right knee meniscus tear that
has required medication and injection treatment in a physician’s
office and in a hospital emergency room (id. at 293, 334) with
pain

medication.

However,

neither

the

substantial

medical

evidence, nor the evidence of Plaintiff’s activities of daily
living,

supports

Dr.

Timberlake’s

opinions

that

Plaintiff

is

unable to engage in any form of gainful employment because of
his upper extremity and right knee problems and associated pain.
(Id. at 393-94, 397).

Therefore, the ALJ had good cause to

discredit those opinions.
substantial

evidence

In addition, the Court finds that the

supports

the

ALJ’s

determination

that

Plaintiff has the RFC to perform a range of light work, with the

25

stated restrictions.

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 29th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

26