MABREY v. COLVIN

Filing 18

ORDER adopting 15 Report and Recommendation. Signed by William Terrell Hodges on 3/28/2017. Accordingly, the Clerk is directed to enter judgment stating the following: "The Report and Recommendation, ECF No. 15 , is accepted and incorporated herein. The decision of the Commissioner, denying benefits, is affirmed." The Clerk is directed to close the file. (kdm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

JAMES H MABREY,
PLAINTIFF,
-vs-

Case No. 1:15-cv-00200-WTH-GRJ

CAROLYN W COLVIN,
DEFENDANT.
______________________________/
ORDER
This matter is before the Court on ECF No. 15, the Report and Recommendation
of the Magistrate Judge. The parties have been furnished a copy of the Report and
Recommendation and have been afforded an opportunity to file objections pursuant to
Title 28, United States Code, Section 636(b)(1). The Plaintiff has filed objections at
ECF No. 17. I have made a de novo review based on those objections.
Having considered the Report and Recommendation, and the timely filed
objections, I have determined that the Report and Recommendation should be
adopted. Plaintiff raises three issues in this case: (1) whether the Administrative Law
Judge (“ALJ”) erred in finding that his past relevant work was semiskilled to skilled; (2)
whether the ALJ failed to fully and fairly develop the record by sending Plaintiff for IQ
testing when his school records showed a score on the California Assessment Test of
between 50 and 60; and (3) whether the ALJ erred in finding Plaintiff to be “closely

Page 2 of 3

approaching advanced age” when he was only five months away from becoming an
“older individual”. ECF No. 12.
With regard to the first issue, the ALJ found that Plaintiff’s prior work as a
dispatcher was not past relevant work and that Plaintiff could not return to his past
relevant work in construction. Thus, the ALJ found that Plaintiff was unable to perform
any past relevant work. Decision of the ALJ, ECF No. 10 ex. 2 at 18. Then, the ALJ
found the Plaintiff retained the RFC for light, unskilled work. Id. at 19. The three
representative occupations offered by the vocational expert – clerk cashier II,
usher/ticket taker, and agricultural sorter – were defined as light, unskilled occupations.
Thus, the ALJ did not require the Plaintiff to perform semiskilled to skilled work, and this
claim provides no basis for relief.
With regard to the second issue, whether the ALJ was required to order an IQ
test to determine if Plaintiff met listing 12.05, the Court agrees with the Magistrate
Judge that the ALJ did not. Under 12.05, in addition to a qualifying IQ score, Plaintiff
must show the following:
Significant deficits in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, of the following areas of mental
functioning:
Understand, remember, or apply information; or
Interact with others (see 12.00E2); or
Concentrate, persist, or maintain pace (see 12.00E3); or
Adapt or manage oneself (see 12.00E4);

Case No: 1:15-cv-00200-WTH-GRJ

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The only specific deficit described by the medical evidence of the Plaintiff was Plaintiff’s
inability to spell words backwards and inability to remember three words after a few
minutes. Otherwise, the daily activities and achievements of the Plaintiff showed that
he had no such significant deficits. He obtained two types of driver licenses, previously
worked as a cab company dispatcher and a construction worker, where he built
houses, did roofs and used various tools.
Finally, the Court agrees with the Magistrate Judge that Plaintiff’s third argument
also does not provide a basis for relief. The ALJ did not rely exclusively on the grids
when determining the number of jobs available to Plaintiff. Instead, the ALJ obtained
the testimony of a vocation expert to determine that there was other work that Plaintiff
could perform given his age, experience, and residual functional capacity.
Accordingly, the Clerk is directed to enter judgment stating the following: “The
Report and Recommendation, ECF No. 15, is accepted and incorporated herein. The
decision of the Commissioner, denying benefits, is affirmed.” The Clerk is directed to
close the file.
IT IS SO ORDERED.
DONE and ORDERED at Gainesville, Florida this 28th day of March, 2017.

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Case No: 1:15-cv-00200-WTH-GRJ