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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRY WHITE, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 14-0341-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

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 has been 

referred to the undersigned Magistrate Judge to conduct all 

proceedings and order judgment in accordance with 28 U.S.C. § 

636(c) and Fed.R.Civ.P. 73 (see Doc. 21). Oral argument was 

waived in this action (Doc. 19). After considering the

administrative record and the memoranda of the parties, it is 

ORDERED that the decision of the Commissioner be AFFIRMED and 

that this action be DISMISSED.

This Court is not free to reweigh the evidence or 

substitute its judgment for that of the Secretary of Health and 

Case 1:14-cv-00341-M Document 22 Filed 03/09/15 Page 1 of 15
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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, White was fortyeight years old, had completed an eleventh-grade special 

education (Tr. 35, 54) and had previous work experience as a 

construction worker (Doc. 13). Plaintiff alleges disability due 

to depression, hypertension, mental retardation, lumbar 

degenerative disc disease, prostatic hypertrophy, post-fracture 

left leg, poor hearing in left ear, weakness in the left hand, 

obesity, pain disorder, and somatoform disorder (Doc. 13).

The Plaintiff applied for SSI and disability benefits on 

July 6 and 13, 2011, respectively, asserting a disability onset 

date of December 24, 2008 (Tr. 173-85; see also Tr. 24). An 

Administrative Law Judge (ALJ) denied benefits, determining that 

although White could not now perform his past relevant work, 

there were specific light-work jobs that he could do (Tr. 24-

39). Plaintiff requested review of the hearing decision (Tr. 

15-20), but the Appeals Council denied it (Tr. 1-6).

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Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, White alleges 

that: (1) He meets the requirements of Listing 12.05C; (2) the 

ALJ’s residual functional capacity (hereinafter RFC) evaluation 

is flawed because it does not take into consideration the 

combination of his impairments; (3) the ALJ failed to complete a 

Psychiatric Review Technique Form (hereinafter PRTF) in his 

analysis; and (4) the ALJ relied on mistaken testimony from the 

vocational expert (hereinafter VE) (Doc. 14). Defendant has 

responded to—and denies—these claims (Doc. 15). A summary of 

the relevant record evidence follows.

On June 19, 2005, White was admitted to UAB Hospital 

following his involvement, as a pedestrian, in a motor vehicle 

accident; he was admitted with third-degree burns of the left 

lateral thigh and leg and fourth and fifth right fingers (Tr. 

258-66). Plaintiff was discharged on July 12 following pin

placement in his left femur, skin grafts, and wound, physical, 

and occupational therapy; he was stable, but restricted from 

heavy lifting and strenuous exercise. 

Six years later, on August 22, 2011, Dr. Stephen J. 

Robidoux, a Family Practitioner, examined Plaintiff who stated 

that he had worked through 2008 at which time he was laid off 

(Tr. 268-72). The Doctor noted that he was an alert, obese—but 

very muscular—man, in no distress; Plaintiff exhibited normal 

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heel and toe, unaided gait and was able to squat and rise. 

After providing range of motion (hereinafter ROM) measurements 

for White’s neck, back, and all extremities, Dr. Robidoux 

diagnosed hypertension and found as follows: “He related a 

vague history of back, arm and ear problem that has not required 

medical evaluation of treatment. . . . I find no limitations for 

his age to sitting, standing, walking, lifting, carrying, 

climbing, bending, stooping, crawling, handling objects, using 

hand and foot controls or travel” (Tr. 271). 

On August 30, 2011, Psychologist Nina E. Tocci provided a 

mental evaluation at the request of the Social Security 

Administration, finding Plaintiff normal, stable, with 

appropriate affect, and oriented in four spheres (Tr. 274-77). 

He had fair attention, scattered concentration, and demonstrated 

a good fund of information, comprehension, and thought content 

appropriate to mood and circumstance; White showed fair social 

judgment and some insight into his behavior. Tocci concluded 

that Plaintiff was functioning within the average range of 

intellectual ability. The Psychologist diagnosed pain disorder, 

assigned a GAF score of 70,1 and indicated a fair progress for 

the Claimant. Tocci indicated that some of White’s “responses 

																																																							 1A GAF score between 61 and 70 indicates “[s]ome symptoms OR some 

difficulty in social, occupational, or school functioning, but 

generally functioning pretty well, has some meaningful interpersonal 

relationships.” See

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

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appeared deliberately contrived and he tended to exaggerate the 

pain” (Tr. 276). In conclusion, the Psychologist stated that 

“[h]is issues appear to be orthopedic in nature and therefore 

his ability to work would need to be determined by a physician. 

Other than the experience of pain, he does not appear to have 

other mental health issues that would interfere with his ability 

to work” (Tr. 276). 

On September 28, 2011, an x-ray noted “[d]egenerative 

changes [] present at multiple levels in the lumbar spine, 

involving the right sacroiliac joint” (Tr. 301). 

White was seen on September 23 and November 18, 2011 at the 

Choctaw Urgent Care for complaints of left leg and longstanding, 

intermittent back pain that he rated at a level eight on a tenpoint scale (Tr. 280-84). On the first exam, he experienced 

back stiffness and pain in his back bending laterally, forward, 

and in rotation; gait was normal and Plaintiff had the ability

to change positions smoothly. There was no increased lumbar 

lordosis, though there was sacroiliac joint and paraspinal 

muscle tenderness. Uncontrolled, chronic back pain and 

hypertension were diagnosed; ordinary activity was recommended. 

Ultram2 was prescribed. At the November examination, White 

stated that the medication was helping his pain; the attending 

																																																							 2Ultram is an analgesic “indicated for the management of moderate 

to moderately severe pain.” Physician's Desk Reference 2218 (54th ed. 

2000).

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doctor noted that his impairments were now controlled (Tr. 283). 

On January 9, 2013, Psychologist Donald W. Blanton examined 

White for complaints of back, left shoulder, and left leg pain 

though he indicated he had anxiety and depression since his 

brother killed his mother (Tr. 287-92). The Psychologist noted 

that thoughts and conversation were logical; associations were 

intact. Affect was flat and appropriate and no confusion was 

noted; no psychomotor retardation was noted. White was alert 

and oriented in four spheres; judgment was good for work and 

financial decision-making. Blanton administered the Wechsler 

Adult Intelligence Scale, Fourth Edition (hereinafter WAIS-IV), 

on which Plaintiff scored a verbal IQ of 63, a perceptual 

reasoning IQ of 71, a working memory IQ of 69, a processing 

speed IQ of 74, and a full scale IQ score of 63; this was 

indicated to be in the mild range of mental retardation. White 

also completed the Wide Range Achievement Test, Revised Third 

Edition, indicating a reading and spelling ability of second 

grade and math comprehension at the fourth-grade level. Blanton 

did not administer the Minnesota Multiphasic Personality 

Inventory because of Plaintiff’s “combination of [] poor 

intellect and poor reading ability” (Tr. 288). The Beck 

Inventory indicated moderate depression. The Psychologist 

indicated that the WAIS scores were a valid assessment of 

White’s intellectual functioning, noting that the academic 

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achievement test found him functionally illiterate. Blanton 

indicated that he demonstrated “deficits in adaptive functioning 

manifested prior to age 22 due to his mental retardation in the 

following areas: communication, work, use of community 

resources, functional academic skills;” he assigned a GAF score 

of 503 (Tr. 288). The Psychologist also completed a mental 

medical source opinion indicating that White was mildly limited 

in his ability to understand, remember, and carry out simple 

instructions, respond appropriately to customers, and use 

judgment in simple, one- or two-step work-related decisions; he 

was moderately limited in responding appropriately to 

supervision and co-workers, dealing with changes in his routine, 

maintaining attention, concentration or pace for two-hour 

periods, and maintaining daily activities; and was markedly 

limited in his ability to understand, remember, carry out, and 

use judgment in detailed or complex instructions and respond to 

customary work pressures (Tr. 291-92). Blanton found that 

Plaintiff’s personal habits and interests would mildly 

deteriorate, that White had been depressed for a year, that his 

pain was real, and that work stress would cause his condition to 

deteriorate; however, he could manage his own benefits.

																																																							 3A GAF score between 41 and 50 indicates “[s]ome impairment in 

reality testing or communication OR major impairment in several areas, 

such as work or school, family relations, judgment, thinking, or 

mood.” See

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

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On April 4, 2012, Dr. Katherine Hensleigh examined 

Plaintiff for complaints of back pain and nervousness, finding 

abdominal tenderness and lumbar muscle spasm with moderate pain 

on motion (Tr. 295-97). Tramadol4 was prescribed.

The ALJ faithfully summarized the evidence before him,5

finding that White could perform specific light jobs; in

reaching that decision, he weighted greatly the reports of 

Psychologist Tocci and Doctor Robidoux, credited the VE’s 

testimony, and dismissed Blanton’s opinions (Tr. 37-39). The 

ALJ gave no credit to Plaintiff’s testimony of pain and 

limitation (Tr. 36-37), a finding gone unchallenged (Doc. 14). 

This concludes the Court’s review of the evidence.

White first claims that he meets the requirements of 

Listing 12.05C (Doc. 14, pp. 2-5). The introductory notes to 

Section 12.05 state that “[m]ental retardation refers to a 

significantly subaverage general intellectual functioning with 

deficits in adaptive behavior 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 (2014). Subsection C 

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Tramadol “is indicated for the management of moderate to 

moderately severe chronic pain in adults who require around-the-clock 

treatment of their pain for an extended period of time.” Physician's 

Desk Reference 2520 (66th ed. 2012).

5The evidence at Tr. 302-27 was submitted to the Appeals Council 

on June 18, 2013, after the ALJ’s determination was entered (Tr. 6). 

As White raises no claim regarding that evidence (Doc. 14), it will 

not be summarized herein.

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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

(2014). 

On the WAIS-IV, White scored a full scale IQ score of 63; 

the ALJ discounted the score, but considered his special 

education, his ability to live alone, maintain his financial 

affairs, and work at several different jobs consistently for 

most of his life, quitting only because the railroad closed (Tr. 

35). He cited Psychologist Tocci’s exam, noting White’s own 

description of his daily activities and finding that Plaintiff 

functioned with average intelligence (Tr. 36). The ALJ cited 

Robidoux’s physical exam, finding only hypertension (Tr. 37).

After considering these things, the ALJ found that White 

“does not have significant limitations in adaptive functioning”

(Tr. 29). The Court agrees: the record evidence does not 

support a finding of disability based on 12.05C. 

In reaching his determination, the ALJ discredited 

Blanton’s conclusions as inconsistent with the other evidence; 

the Court finds substantial support for that conclusion. The 

ALJ further discounted Blanton’s report as bought and paid for, 

on the advice of a lawyer, in search of a disability claim (see

Tr. 37). The Court reminds Defendant that social security 

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regulations require White to provide evidence of impairment. 20 

C.F.R. § 404.1545(a)(3). 

In summary, the ALJ credited White’s daily activities as 

demonstrating an ability to work and care for himself. As such, 

his assertion of lifelong mental retardation could not be 

supported. 

The Court agrees with this conclusion. White has not 

demonstrated, in this medical record, that he suffers “deficits 

in adaptive behavior” in the present, much less that they became 

manifest before he was twenty-two. Plaintiff’s claim otherwise 

is without merit.

White next alleges that the ALJ’s RFC evaluation is flawed 

because it does not consider the combination of his impairments 

(Doc. 14, pp. 6-7). Plaintiff charges the ALJ with failing to 

properly represent his severe impairments of--depression, 

anxiety, chronic pain disorder, and inability to read—in either 

the RFC or his questions to the VE.

The Court notes that the ALJ is responsible for determining 

a claimant’s RFC. 20 C.F.R. § 404.1546 (2013). That decision 

cannot be based on “sit and squirm” jurisprudence. Wilson v. 

Heckler, 734 F.2d 513, 518 (11th Cir. 1984). 

In the decision, the ALJ found Plaintiff’s RFC to be as 

follows: 

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[He] can perform light work as defined in 20 

C.F.R. §§ 404.1567(b)6 and 416.957(b) except 

with the following limitations: He is able 

to lift, carry, push and pull 20 pounds 

occasionally and 10 pounds frequently. He 

can sit and stand for 6 hours in an 8-hour 

work day but would require a sit/stand 

option to relieve pain and discomfort. He

can frequently climb ramps and stairs but 

never climb ladders or scaffolds. He is 

able to frequently balance, stoop, kneel, 

crouch, and crawl. He should never be 

exposed to unprotected heights, dangerous 

machinery, dangerous tools, hazardous 

processes, or operate a motor vehicle. He 

could occasionally operate non-dangerous 

moving mechanical parts and would be limited 

to understanding oral instructions and 

performing only routine and repetitive 

tasks. Any time off task by the claimant 

would be accommodated by normal workday 

breaks. 

(Tr. 30). 

The Court notes, initially, that "the Secretary shall 

consider the combined effect of all of the individual's 

impairments without regard to whether any such impairment, if 

considered separately, would be of such severity." 42 U.S.C. § 

423(d)(2)C). The Eleventh Circuit Court of Appeals has noted 

																																																							 6“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.”

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this instruction and further found that "[i]t is the duty of the 

[ALJ] to make specific and well-articulated findings as to the 

effect of the combination of impairments and to decide whether 

the combined impairments cause the claimant to be disabled." 

Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984); see also

Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984); Wiggins v. 

Schweiker, 679 F.2d 1387 (11th Cir. 1982).

In his findings, the ALJ lists White's impairments and 

concludes by saying that he “does not have an impairment or 

combination of impairments that meets or medically equals the 

severity of one of the listed impairments in 20 C.F.R. Part 404, 

Appendix 1, Subpart P" (Tr. 29). Very similar language has been 

upheld by the Eleventh Circuit Court of Appeals as sufficient 

consideration of the effects of the combinations of a claimant's 

impairments. Jones v. Department of Health and Human Services, 

941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant does not have 

“an impairment or combination of impairments listed in, or 

medically equal to one listed in Appendix 1, Subpart P, 

Regulations No. 4"). 

White has also argued that the ALJ ignored his depression, 

anxiety, chronic pain disorder, and inability to read in the RFC 

(Doc. 14, p. 7). The ALJ found that these impairments were not 

severe (Tr. 26-27). 

In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984), 

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the Eleventh Circuit Court of Appeals held that "[a]n impairment 

can be considered as not severe only if it is a slight 

abnormality which has such a minimal effect on the individual 

that it would not be expected to interfere with the individual's 

ability to work, irrespective of age, education, or work 

experience." Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 

1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf. 20 

C.F.R. § 404.1521(a) (2004).7 The Court of Appeals has gone on 

to say that "[t]he 'severity' of a medically ascertained 

disability must be measured in terms of its effect upon ability 

to work, and not simply in terms of deviation from purely 

medical standards of bodily perfection or normality." McCruter 

v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

Though White asserts that his depression, anxiety, chronic 

pain disorder, and inability to read are severe, he fails to 

point to evidence, under Brady or McCruter, demonstrating an 

inability to work because of them. As such, they are not severe 

and the ALJ’s consideration of them, under Jones has been 

satisfied. The Court finds substantial support for the ALJ’s 

RFC determination.8

Plaintiff’s third claim is that the ALJ failed to complete 

																																																							 													7

"An impairment or combination of impairments is not severe if it 

does not significantly limit your physical or mental ability to do 

basic work activities."

8The Court also finds White’s claim that the ALJ failed to 

present these impairments in proper hypotheticals to the VE meritless.

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a PRTF in his analysis (Doc. 14, pp. 8-11). Though the form 

itself was not appended, the Court finds that the ALJ set this 

information out in his determination: White had no limitations 

in daily living activities or in concentration, persistence, or 

pace, and had never experienced an episode of decompensation; he 

had mild limitations in social functioning (Tr. 27). The Court 

finds that the ALJ has properly incorporated the PRTF analysis 

required in Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 

2005) and met the obligations of 20 C.F.R. § 404.1520a. White’s 

claim that the unfiled form constitutes remand is without merit.

Finally, Plaintiff asserts that the ALJ relied on mistaken 

testimony from the VE. Specifically, White points to the VE’s 

characterization of his past work as a scaffold builder rather 

than construction worker (Doc. 14, pp. 9-11; cf. Tr. 37). 

However, as pointed out by Defendant, this mistake, if in 

fact it is a mistake, is at most harmless because it was a 

characterization of previous work. The ALJ found that Plaintiff 

could not do his past work and moved on to the fifth step of the 

evaluation analysis, finding specific light work jobs that he 

could do. As such, the error is insignificant.

Petitioner also asserts that the VE’s testimony is in error 

in that it conflicts with the Dictionary of Occupational Titles 

because that reference does not address whether occupations 

include a sit/stand option (Doc. 14, p. 10). The Eleventh 

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Circuit Court of Appeals has specifically held “that when the 

VE’s testimony conflicts with the DOT, the VE’s testimony 

‘trumps’ the DOT.” Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th

Cir. 1999), cert. denied, 529 U.S. 1089 (2000). The Jones Court 

noted the DOT’s acknowledgement that it was not a comprehensive 

source and should be supplemented with local job information. 

Id.

Here, the ALJ offered a proper hypothetical question to the 

VE and questioned him as to the effect of a sit-stand opinion 

(Tr. 38, 75-79). This Court has no reason to find the VE’s 

testimony that White can perform the jobs of tagger, cloth 

folder, and inspector unsupported by substantial evidence.

White has raised many claims in this action that are all 

without merit. Upon consideration of the entire record, the 

Court finds "such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion." Perales, 402 U.S. 

at 401. Therefore, it is ORDERED that the Secretary's decision 

be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th 

Cir. 1980), and that this action be DISMISSED. Judgment will be 

entered by separate Order.

DONE this 9th day of March, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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