Thomas v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED to the Social Security Administration, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 2/17/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT D. THOMAS,

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

CIVIL ACTION 15-0214-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling denying claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13).
The parties filed written consent and this action was referred
to the undersigned Magistrate Judge to conduct all proceedings
and order judgment in accordance with 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 23).
Oral argument was waived in this action (Doc. 22).

After

considering the administrative record and the memoranda of the
parties, it is ORDERED that the decision of the Commissioner be
REVERSED and that this action be REMANDED for further action not
inconsistent with the Orders of this Court.

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This Court is not free to reweigh the evidence or
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).

Substantial

evidence 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, Thomas was
twenty-five years old, had a limited education (see Tr. 26) and
previous work experience as a fish processor and construction
worker (Tr. 49).

Plaintiff alleges disability due to lumbar

degenerative disc disease, obesity, and mild mental retardation
(Doc. 12).
The Plaintiff applied for disability benefits and SSI on
February 2, 2012, asserting a disability onset date of July 1,
20121 (Tr. 17, 150-63).

An Administrative Law Judge (ALJ) denied

benefits, determining that although he could not return to his
past work, there were light work jobs that Thomas could perform
(Tr. 17-27).

Plaintiff requested review of the hearing decision

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1Thomas initially asserted an onset date of October 31, 2009, but
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amended it at the evidentiary hearing (see Tr. 17, 37).!!!
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(Tr. 137-40), but the Appeals Council denied it (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Thomas alleges

(1) The ALJ improperly rejected the conclusions of his

treating physician, Dr. Perry Timberlake; (2) the ALJ’s
statement of Plaintiff’s residual functional capacity
(hereinafter RFC) is improperly presented; (3) the ALJ’s
hypothetical questions to the Vocational Expert (hereinafter VE)
did not properly reflect all of his limitations; (4) the ALJ did
not develop a full and fair record; (5) the Appeals Council did
not properly consider the newly-submitted report of Psychologist
Donald Blanton; and (6) he meets the requirements of Listing
12.05C (Doc. 13).

Defendant has responded to—and denies—these

claims (Doc. 18).

The relevant evidence of record follows.2

On March 15, 2011, Dr. Larry O. Skelton physically examined
Thomas at the request of the Social Security Administration
(hereinafter SSA) (Tr. 266-70).

Plaintiff complained of back

pain of thirteen years’ duration though he had never had
treatment for it.

The Doctor noted normal range of motion

(hereinafter ROM) in the fingers, wrists, elbows, shoulders,
ankles, knees, hips, and cervical and lateral spine; there were
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2The Court notes that ninety percent of the record medical
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evidence pre-dates Thomas’s asserted onset date of July 1, 2012
(12/162 pages); four of those twelve pages post-date the date of the
ALJ’s decision. As such, the Court will review only what is
considered relevant to the claims brought in this action.

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mild limitations in the dorsolumbar spine.

He could stand on

his toes and heels, squat and rise, and had normal gait without
assistance.

Thomas’s strength in his grasp, upper arms, and

lower legs was full; sensory and strength were normal in all
four extremities.
On March 18, 2011, Psychologist Michael P. Griffin, at the
request of the SSA, examined Plaintiff who stated that he had
dropped out of school in eleventh grade and had often been
placed in special education classes (Tr. 272-77).

The Examiner

administered the Wechsler Adult Intelligence Scale-Fourth
Edition (WAIS-IV), but declined to reveal the scores and found
them invalid noting that “Thomas’ level of effort and
attentiveness was sub-optimal” and that “he generally put forth
little (if any) effort on a majority of the subtests” (Tr. 274).
On exam, the Psychologist found Plaintiff oriented in four
spheres, with attention and immediate memory intact; recent
memory was slightly impaired and remote memory was adequate
though his fund of knowledge was “obviously impoverished” (Tr.
274).

Thomas had concrete reasoning abilities and his thought

processes were logical and organized; his mood was euthymic
though he claimed slight anxiety and general irritability.

The

Psychologist found no evidence “for any clinical diagnosis” of
any kind (Tr. 275) with a prognosis as follows:

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Mr. Thomas appears to have a valid
history of learning difficulties; however,
there is no evidence to substantiate the
presence of mental retardation.
Nonetheless, the documented presence of
learning difficulties, would severely impact
Mr. Thomas’ ability to continue to perform
well in school without assistance, as well
as his ability to learn new work tasks.
That being said, there is no reason to
believe he would be incapable of learning
the skills required for a number of labor
positions.
(Tr. 275).

The Psychologist found him “quite capable of

maintaining stable employment . . . if [] provided appropriate
support and supervision;” he suggested a financial guardian,
however (Tr. 276).

Griffin noted that Thomas had not

“describe[d] any adaptive deficits consistent with mental
retardation” (Tr. 275).
On April 19, 2011, Dr. Robert Estock reviewed the evidence
of record as of that date and completed a Psychiatric Review
Technique Form at the request of the SSA; he never personally
examined Plaintiff (Tr. 278-91).

The Doctor determined that

Thomas’s mental impairments were not severe and that he suffered
from an organic mental disorder; more specifically, he suffered
from a reading disorder.

Estock determined that Plaintiff had

no restrictions in his activities of daily living or in
maintaining social functioning; he had only mild difficulties in
maintaining concentration, persistence, or pace (Tr. 289).

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The

Doctor noted that Thomas was not taking psychotropic medication
and was not seeking mental health treatment (Tr. 291).
On April 19, 2011, Dr. Robert H. Helipern reviewed the
evidence of record as of that date and completed a physical RFC
assessment at the request of the SSA; he never personally
examined Thomas (Tr. 293-300).

Noting that Plaintiff’s primary

diagnosis was obesity, the Doctor indicated that Plaintiff could
lift and carry up to fifty pounds occasionally and twenty-five
pounds frequently and could sit and stand or walk for up to six
hours per eight-hour workday; he would have no problems with
hand or foot controls.

Though Thomas could never balance, he

could frequently climb, stoop, kneel, crouch, and crawl;
Helipern found no manipulative, visual, communicative, or
environmental limitations except that Plaintiff should avoid
concentrated exposure to machinery and heights.
On April 27, Thomas was at home when it was hit by a
tornado, prompting him to go to the Hale County Hospital
Emergency Room for swelling and tenderness in the right elbow
area and pain in his right side and right lower back (Tr. 32227).

Plaintiff was given a cortisone shot and a single Tylenol

#3.3

An x-ray of the elbow showed no dislocation or fracture.
There are no medical records for the next nine months

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3Error!%Main%Document%Only.Tylenol with codeine is used “for the
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relief of mild to moderately severe pain.”
2061-62 (52nd ed. 1998).

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Physician's Desk Reference

until, on February 10, 2012, Dr. Perry Timberlake saw Plaintiff
for a headache that caused pain down his neck into his back that
had become worse following the tornado; he also had right elbow
pain (Tr. 330-31).

Timberlake noted Thomas’s weight of 298

pounds and body mass index of 44; he noted moderate tenderness
in the lumbosacral area and neck with full ROM in the left
elbow.

The Doctor found Plaintiff “completely and totally

disabled to do gainful work now or in the future” because of
lumbar disc disease, chronic neck pain, morbid obesity, an
academic/educational problem, depression and possible
hypertension; he prescribed Lortab4 and Amitriptyline5 (Tr. 331).
On March 6, Plaintiff underwent an MRI of the lumbar spine
that showed a small broad-based central/right paracentral disc
protrusion superimposed on a disc bulge at L5-S1 with no
evidence of neural impingement; an MRI of the cervical spine was
negative (Tr. 338-39).
On June 13, Dr. Timberlake examined Thomas for back pain
and a burning sensation; the Doctor noted that Plaintiff was on
no medications, weighed 324 pounds and was tender in the
lumbosacral spine (Tr. 356-57).

Lortab, Amitriptyline, and an

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4Error! Main Document Only.Lortab is a semisynthetic narcotic
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analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).
5Error!%Main%Document%Only.Amitriptyline, marketed as Elavil, is used
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to treat the symptoms of depression. Physician's Desk Reference 3163
(52nd ed. 1998).

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antibiotic were prescribed.

On August 31, Thomas complained of

back pain; his weight was 340 pounds (Tr. 364-65).

Dr.

Timberlake’s only note following a physical examination was that
Thomas was alert, but he renewed prescriptions for Lortab and
Amitriptyline.

On March 15, 2013, Plaintiff complained of back

and neck pain; he weighed 353 pounds (Tr. 362-63).

The Doctor

noted tenderness in the neck and lumbosacral area and prescribed
Tylenol #3 and amitriptyline.
On September 11, nearly six months after his most recent
examination, Dr. Timberlake complete a physical medical source
statement in which he indicated that Thomas was capable of
sitting two and standing/walking one hour during an eight-hour
day; he could lift and/or carry five pounds occasionally and one
pound frequently (Tr. 367).

The Doctor went on to find that

Plaintiff could occasionally perform gross and fine
manipulation, reach, operate motor vehicles and work with or
around hazardous machinery; he could use arm and leg controls,
climb, and balance, only rarely, and could never bend or stoop.
Timberlake said that Plaintiff would miss at least three days a
month because of his impairments.

The Doctor also completed a

pain questionnaire that indicated that Thomas’s pain was
profound, intractable, and virtually incapacitating; that
physical activity would increase his pain to such an extent that
bed rest and/or medication would be necessary; and that

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medications would place severe limitations on even the simplest
everyday tasks (Tr. 368).

This concludes the Court’s summary of

the evidence.
In bringing this action, Plaintiff first claims that the
ALJ improperly rejected the conclusions of his treating
physician, Dr. Perry Timberlake (Doc. 13, pp. 6-7).

It should

be noted that "although the opinion of an examining physician is
generally entitled to more weight than the opinion of a nonexamining 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);6 see
also 20 C.F.R. § 404.1527 (2015).
In his decision, the ALJ assigned little weight to Dr.
Timberlake’s conclusions and his physical medical source
statement, noting that they were inconsistent with his own
examination findings and Thomas’s reports of his abilities and
limitations (Tr. 25).

The ALJ went on to point out that, in his

examination of February 10, 2012, the Doctor noted only moderate
tenderness in Plaintiff’s lumbosacral and neck while finding him
completely and totally disabled to work; Timberlake reached this
conclusion without benefit of any objective testing and in spite
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6The Eleventh Circuit, in Bonner v. City of Prichard, 661
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F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent
decisions of the former Fifth Circuit rendered prior to October
1, 1981.

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of the fact that there was no evidence that he had ever examined
Thomas before that date (see Doc. 13, p. 3).

The ALJ also

pointed out that Plaintiff continued to work for four more
months after Timberlake declared him disabled (Tr. 25).

The

Court also notes that the Doctor had last examined Thomas six
months earlier when he completed his physical medical source
statement.

The Court finds no merit in Thomas’s claim that the

ALJ did not properly consider the conclusions of his treating
physician.
Plaintiff next claims that the ALJ’s statement of his RFC
is improperly presented.

Thomas asserts that the RFC should

have been expressed “in terms of limitations rather than
including impairments” (Doc. 13, p. 4).

More specifically,

Plaintiff objects to the conclusions that he has difficulty
reading, might be functionally illiterate, and takes
prescription medications.
“The RFC assessment is a function-by-function assessment
based upon all of the relevant evidence of an individual’s
ability to do work-related activities.”
96-8p, Titles II and XVI:

Social Security Ruling

Assessing Residual Functional

Capacity in Initial Claims, 1996 WL 374184, *3.

The Court notes

that the ALJ is responsible for determining a claimant’s RFC.
20 C.F.R. § 404.1546.

However, the Court also notes that the

social security regulations state that Plaintiff is responsible

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for providing evidence from which the ALJ can make an RFC
determination.

20 C.F.R. § 404.1545(a)(3).

In his decision, the ALJ found that Plaintiff had the RFC
to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b) except
the claimant can lift or carry twenty pounds
occasionally and ten pounds frequently. He
can sit up to six hours in an eight-hour day
and can stand or walk in combination up to
six hours in an eight-hour day. However,
the claimant cannot perform around work
hazards but can frequently climb, balance,
stoop, kneel, crouch, or crawl. The
claimant has difficulty reading and may be
functionally illiterate. Additionally, he
takes prescription narcotic medication for
back pain.
(Tr. 22).

Light work has been defined as follows:
Light work involves lifting no more
than 20 pounds at a time with frequent
lifting or carrying of objects weighing up
to 10 pounds. Even though the weight lifted
may be very little, a job is in this
category when it requires a good deal of
walking or standing, or when it involves
sitting most of the time with some pushing
and pulling of arm or leg controls. To be
considered capable of performing a full or
wide range of light work, you must have the
ability to do substantially all of these
activities. If someone can do light work,
we determine that he or she can also do
sedentary work, unless there are additional
limiting factors such as loss of fine
dexterity or inability to sit for long
periods of time.

20 C.F.R. § 404.1567(b).

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At the outset, the Court notes that Thomas’s argument
relies, in good measure, on accepting his own testimony and the
conclusions of Psychologist Donald W. Blanton (Doc. 13, p. 4).
The Court finds this reliance misplaced as Plaintiff’s
credibility was found lacking by the ALJ (Tr. 23-24), yet no
claim has been raised in this action for that rejection.

As for

the Psychologist’s conclusions, they were not made until
December 18, 2013 (Tr. 370-72), more than a month after the
ALJ’s determination of November 8, 2013; the ALJ can hardly be
held responsible for evidence not in evidence or existence.7
Thomas’s claim asserts that the ALJ did not properly take
into account his need for narcotic medications in fashioning the
RFC.

The evidence of the limitations coming from those

medications, however, came from Plaintiff himself; that evidence
was discounted without challenge.

The only other evidence came

from Dr. Timberlake though Thomas fails to point to any in
making this argument (Doc. 13, pp. 4-5); the Court has already
determined that Dr. Timberlake’s conclusions regarding
Plaintiff’s abilities and limitations were not supported by
substantial evidence.
Thomas also expressed concern that the ALJ’s RFC
determination did not properly frame his reading difficulty or
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7The Court will review Blanton’s conclusions later, though, in
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connection with a separate claim raised by Thomas.

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functional illiteracy in terms of limitation.

The Court is

unsure what more could have been said by the ALJ to define the
limitation of an inability to read—and Thomas does not offer
one—but the Court finds this to be, at most, harmless error.
The Court finds no merit in Plaintiff’s claim that the ALJ’s RFC
determination is improperly presented, constructed, or framed.
Thomas next claims that the ALJ’s hypothetical questions to
the VE did not properly reflect all of his limitations (Doc. 13,
pp. 4-5).8

The Eleventh Circuit Court of Appeals has held that

an ALJ's failure to include severe impairments suffered by a
claimant in a hypothetical question to a vocational expert to be
reversible error where the ALJ relied on that expert's testimony
in reaching a disability decision.
1561 (11th Cir. 1985).

Pendley v. Heckler, 767 F.2d

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The Court found no merit in Plaintiff’s claim that the ALJ
improperly framed his RFC.

The Court finds that this claim

relies on the same evidence cited earlier and, as such, that it
gains no momentum here.

The Court further notes that the ALJ’s

third question to the VE encompassed all of the findings in the
RFC (see Tr. 49-52); the VE listed specific jobs, relied on by
the ALJ, that could Thomas could perform (Tr. 27).

This claim

is without merit.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
8Although this claim was not separately set out, it was argued
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alongside Thomas’s claim that the ALJ’s RFC determination was
improperly framed.

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Thomas next claims that the ALJ did not develop a full and
fair record.9

He more specifically asserts that he requested IQ

testing, but the ALJ did not respond (Doc. 13, p. 8; cf. Tr.
261).

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

required to order a consultative examination as long as the
record contains sufficient evidence for the [ALJ] 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)).
The Court reminds Plaintiff that a consultative examination
was performed by Psychologist Griffin (Tr. 272-77).

As noted

earlier, Griffin administered the WAIS-IV but rendered the
scores invalid since “Thomas’ level of effort and attentiveness
was sub-optimal” and “he generally put forth little (if any)
effort on a majority of the subtests” (Tr. 274).

In addition to

Griffin’s examination findings, the ALJ considered Dr. Estock’s
psychological evaluation (Tr. 278-91).

Both Griffin and Estock

found Plaintiff able to work; Griffin also found no evidence
that Thomas suffered from adaptive deficits indicating mental
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9The Court notes that this claim was not separately made, but was
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subsumed within the claim against the Appeals Council, yet to be
discussed.!

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retardation.

The ALJ gave significant weight to those opinions

(Tr. 24-25).

The Court finds no error in the ALJ’s decision not

to order a second consultative psychological evaluation.!
Plaintiff next claims the Appeals Council did not properly
consider the newly-submitted report of Psychologist Donald
Blanton (Doc. 13, pp. 7-12).

In making this claim, Thomas

asserts that the new evidence demonstrates that he meets the
requirements of Listing 12.05C, his sixth claim in this action.
The Court notes that the Appeals Council considers
additional evidence submitted by a claimant if it is new,
material, and chronologically relevant.

20 C.F.R. § 404.970(b).

The Appeals council must then decide if the new information
renders the ALJ’s “action, findings, or conclusion [] contrary
to the weight of the evidence currently of record.”

Id.

The

Court further held that “when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider
whether that new evidence renders the denial of benefits
erroneous.”

Ingram v. Commissioner of Social Security

Administration, 496 F.3d 1253, 1262 (11th Cir. 2007).

The newly-

presented evidence was as follows.
On December 18, 2013, Psychologist Blanton examined Thomas
at the request of his attorney and found his thoughts and
conversation logical (Tr. 370-72).

Associations were intact and

affect was flat but appropriate; he was not confused but was

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depressed.

No psychomotor retardation or agitation was noted;

Thomas was oriented in four spheres.

Insight was limited, but

judgment was fair for work and financial decisions.

Plaintiff

took the WAIS-IV and obtained a full-scale IQ score of 61,
placing him in the mild range of mental retardation; the
Psychologist thought this score was valid.

On the Wide Range

Achievement Test-III, Thomas was able to read and spell at the
first grade level and perform math as well as a fourth-grader.
The Minnesota Multiphasic Personality Inventory was not
administered because of Plaintiff’s low intellect and poor
reading ability; the Beck Depression Inventory II demonstrated
moderate depression.

Blanton indicated that the testing showed

that Thomas was functionally illiterate.

The Psychologist went

on to offer the following opinion:
Thomas has marked limitations that seriously
interfere with his ability to perform workrelated activities on a day-to-day basis in
a regular work setting in the following
areas[:] understand detailed or complex
instructions, use judgment in detailed or
complex instructions. It is my opinion that
his emotional problems have been present at
this level for at least one year and that
his mental retardation has been a lifelong
condition. Is also my opinion that his
emotional problems are likely to increase if
he is placed under stress especially that of
a job without relief from his pain.
Robert Thomas demonstrates deficits in
adaptive functioning due to his mental
retardation manifested prior to age 22 in

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the following areas: communication, work,
functional academic skills.
(Tr. 371-72).
As noted earlier, Plaintiff has asserted that he meets the
requirements of Listing 12.05C for intellectual disability.

The

introductory notes to Section 12.05 state that “[i]ntellectual
disability refers to a significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the development period; i.e., the
evidence demonstrates or supports onset of the impairment before
age 22.”

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing

12.05 (2015).

Subsection C requires "[a] valid verbal,

performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant
work-related limitation of function."

20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing 12.05C (2015).
The Court finds that Blanton’s examination provides
information that could support a finding of disability under
Listing 12.05C.
The Appeals Council, in denying the review of the new
evidence, stated as follows:
In looking at your case, we considered
the reasons you disagree with the decision
in the material listed on the enclosed Order
of Appeals Council.

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We considered the Administrative Law
Judge’s action, findings, and conclusion
contrary to the weight of the evidence of
record.
We found that this information does not
provide a basis for changing the
Administrative Law Judge’s decision.
(Tr. 1-2).10
The Appeals Council is not required “to give a detailed
rationale for why each piece of new evidence submitted to it
does not change the ALJ’s decision.”

Mitchell v. Commissioner

of Social Security Administration, 771 F.3d 780, 784 (11th Cir.
2014).

However, the Council is required “to apply the correct

legal standards in performing its duties.”

Id.

The Court finds that there is nothing in the Appeals
Council’s denial to indicate that it properly considered whether
the newly-submitted evidence met the requirements of Listing
12.05C.

As the Council has not provided reasoning sufficient

for this Court to determine that it conducted proper legal
analysis under Mitchell, the Appeals Council decision must be
reversed.

Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th

Cir. 1991) (“The Secretary’s failure to apply the correct law or
to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted
mandates reversal”).
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10The second paragraph, on its face, indicates error in the ALJ’s
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decision. The Court presumes it contains a scrivener’s error.!
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Thomas has raised multiple claims in bringing this action.
Though most are without merit, his claim that the Appeals
Council did not properly consider newly-submitted evidence has
merit.

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 this action be REVERSED

and REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for a
determination as to whether Plaintiff meets Listing 12.05C
requirements.
DONE this 17th day of February, 2016.

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

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