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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NICHOLAS RYAN JONES, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15-0650-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, 15). 

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), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 

20). Oral argument was waived in this action (Doc. 21). 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 

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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 most recent administrative hearing, 

Plaintiff was thirty-one years old, had completed a ninth-grade

education (Tr. 59), and had previous work experience as a heavy 

equipment operator and construction equipment mechanic (Tr. 80). 

Plaintiff alleges disability due to a history of pseudoseizure 

activity, a somatoform disorder, and an intellectual disability 

(Doc. 15 Fact Sheet).

The Plaintiff applied for disability insurance and SSI on 

April 23, 2012, alleging a disability onset date of December 20, 

2011 (Tr. 27, 246-61). An Administrative Law Judge (ALJ) denied 

benefits, determining that although Jones could not return to 

his past work, there were specific medium-exertion jobs that he 

could perform (Tr. 27-37). Plaintiff requested review of the 

hearing decision (Tr. 23), but the Appeals Council denied it 

(Tr. 1-6).

Plaintiff claims that the opinion of the ALJ is not 

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supported by substantial evidence. Specifically, Jones alleges 

that the Appeals Council failed to properly consider newlysubmitted evidence of two different impairments (Doc. 15). 

Defendant has responded to—and denies—these claims (Doc. 16).

The Court’s summary of the relevant record medical evidence 

follows.

On August 3, 2011, Jones went to Wayne General Hospital 

with complaints of low back pain following a seizure while 

driving (Tr. 383).

On October 4, 2011, Jones went to the Washington County 

Hospital Emergency Department after being hit in the upper lip 

with metal while working on motor parts (Tr. 342-44). He 

received sutures and was told to take Tylenol.

On June 12, 2012, Plaintiff was seen by Neurologist Todd D. 

Elmore for complaints of seizures over the past six-to-eight 

years (Tr. 354-56). The seizures caused confusion, 

aggressiveness, and Jones’s not making any sense; he was no 

longer working, but it was not due to the seizures. Elmore 

noted that Plaintiff was alert and oriented, had intact memory, 

and had normal attention span and concentration; receptive and 

expressive language skills were normal. Jones had an adequate 

fund of knowledge concerning current and past events and 

adequate insight for his age. The Neurologist’s impression was 

probably complex partial seizure disorder with rare secondary 

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generalization accompanied by compliance issues; it was his 

opinion that Jones could work a sedentary job so long as a 

seizure would not endanger him or others. Elmore recommended 

further testing. 

On May 10, 2013, Jones went to Victory Health Center for a 

seizure; though he had taken medication previously, he had not 

taken anything since 2010 (Tr. 357-58). Plaintiff was 

instructed to stop smoking and to take his seizure medications. 

On August 30, 2013, Plaintiff went to Victory Health 

Partners following a seizure (Tr. 389).

On October 9, 2013, Psychologist John W. Davis examined 

Jones at the request of the Social Security Administration (Tr. 

391-98). Plaintiff reported experiencing seizures or “spells” 

for the previous ten-to-twelve years that occur daily, sometimes 

fifteen times a day; his wife had told him that sometimes he was 

“loving” while at others he was quite aggressive. Medications 

had decreased the severity of the spells, but had not stopped 

them. Davis noted that Jones had normal communication and mood 

with no indications of deficits in concentration or attention; 

there were no loose associations, tangential or circumstantial 

thinking, or confusion. Judgment and insight were considered 

fair. Jones spent his days doing yard work and gardening; his 

intellectual level was thought to be low average. Psychologist 

Davis indicated that Plaintiff had a Somatoform Disorder, NOS; 

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his prognosis, with treatment, was guarded. Davis also made the 

following findings:

The claimant’s ability to understand 

and remember complex instructions, carry out 

complex instructions, and make judgments on 

complex work-related decisions is moderately 

to markedly impaired at this time due to the 

reported unpredictable nature of 

pseudoseizure-type episodes.

The claimant’s ability to interact 

appropriately with the public, supervisors, 

and co-workers; and to respond appropriately 

to usual work situations and to changes in 

routine setting is moderately impaired at 

this time due to reported aggressive 

behavior during pseudoseizure-type episodes.

(Tr. 395). 

In her decision, the ALJ found that Jones had severe 

impairments of a history of pseudoseizure activity and 

somatoform disorder (Tr. 29). She went on to find that 

Plaintiff had not demonstrated that he met the requirements of 

any of the disability listings (Tr. 30). The ALJ then found 

that Jones could perform a reduced range of medium-exertion 

work, naming specific jobs that he could perform (Tr. 31-36). 

In evaluating the evidence, the ALJ rejected the testimony of 

Plaintiff and his wife (Tr. 32-34).1

																																																							 1Plaintiff has asserted that the ALJ did not make explicit 

findings regarding his credibility (Doc. 15, p. 12). Though 

technically true, the ALJ did point out that his testimony was 

inconsistent with reports given to his doctors and at odds with his 

professed activities (Tr. 32-33).

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This concludes the Court’s summary of the evidence.

In bringing this action, Jones claims that the Appeals 

Council failed to properly consider newly-submitted evidence of 

two different impairments (Doc. 15). More specifically, 

Plaintiff asserts that the new evidence should have led the 

Appeals Council to remand this action to the ALJ to determine 

whether he suffered from the severe impairments of seizure 

disorder and intellectual disability.

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 

Eleventh Circuit Court of Appeals has 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 new evidence presented to the Appeals Council was as 

follows.

On July 10, 2014, Dr. Larry Thead wrote a “To Whom It May 

Concern” letter indicating that he had recently begun treating 

Jones for a ten-year history of seizures during which the

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seizures had never been under control (Tr. 409). Seizure 

activity had been witnessed in his clinic and Jones had begun 

taking an anti-seizure medication, Dilantin, again. Thead was 

attempting to get an additional opinion from a neurologist. The 

Doctor went on to state the following: “It is my opinion that 

this patient’s seizures have not been under consistent control 

and that he is currently totally disabled because of this” (Tr. 

409). 

On November 20, 2014, Dr. Sid Crosby wrote a “To Whom It 

May Concern” letter, stating that he had examined Plaintiff once 

and that he had a normal neurological exam though he had a 

laceration to his forehead due to a recent seizure (Tr. 411).

On December 12, 2014, Dr. Diana C. Hengartner with the 

University of South Alabama College of Medicine Department of 

Neurology indicated that Jones had been having at least two-tothree seizures per week (Tr. 413-14).2

 A recent hospitalization 

had located the seizures in the left anterior temporal lobe; 

Plaintiff was thought to be a good surgical candidate. A brain 

MRI showed left hippocampal sclerosis. 

On March 13, 2015, Clinical Neuropsychologist Melissa Ogden 

noted that a recent PET scan showed hypometabolic activity in 

the left temporal lobe; she noted that apart from his seizures, 

																																																							 2Dr. Hengartner’s assessment and plan were reviewed and approved 

by Associate Professor of Neurology, Dr. Juan Ochoa (Tr. 414).

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he was healthy (Tr. 415-17). Jones reported earning Cs and Ds 

in school “but denied any history of grade retention, learning 

difficulties, enrollment in special education, or tutoring;” he 

further reported no difficulties in managing all aspects of 

independent daily living (Tr. 415). Thought processes were 

logical and goal directed; affect was appropriate. Jones 

underwent the Wechsler Abbreviated Scales of Intelligence 

(hereinafter WASI) on which he scored a verbal IQ of 65, a 

performance IQ of 99, and a full scale IQ of 79; he also 

underwent several other tests. The Neuropsychologist provided 

the following statement about his test results:

Mr. Jones demonstrated cognitive 

weakness in the areas of language skills, 

with below expectation performances on tests 

of vocabulary, verbal abstraction, 

confrontation naming, and semantic verbal 

fluency. His scores on other measures were 

within expectation for his age and education 

level, including his performances on 

measures of verbal and visual memory. His 

verbal memory performances were generally 

low average to average and not significantly 

discrepant from his visual memory scores.

The overall pattern of results is not 

suggestive of lateralized temporal lobe 

functions. However, he did demonstrate some 

degree of language-related difficulty, which 

may represent extra temporal dominant 

hemisphere inefficiency. Given his strong 

performances on some verbal memory measures 

(assuming left hemisphere language 

dominance), he may be at risk for a decline 

in verbal memory capability following a left 

temporal lobectomy.

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(Tr. 417).3 

The Court notes that 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 Appeals Council stated that it considered the new 

evidence and found no basis for changing the ALJ’s decision (Tr. 

2). No other explanation was given. The Court will examine the 

new evidence to determine if that decision was error, starting 

with the evidence related to Plaintiff’s seizures.

Dr. Thead’s letter stated that Jones was a recent patient 

and that the Doctor had adjusted his medications (Tr. 409). He 

noted that someone in the office had seen seizure activity. 

Thead indicated that Plaintiff was disabled.

Dr. Crosby’s letter stated that the one neurological exam 

he had conducted was normal (Tr. 411). 

Dr. Hengartner stated that the location of the seizures had 

been established and noted that Jones had experienced five 

seizures over the course of the previous month (Tr. 413). 

																																																							 3Plaintiff submitted other evidence to the Appeals Council that 

was rejected as being unrelated to his state of disability as of April 

23, 2014, the date of the ALJ’s decision (Tr. 2). Jones has made no 

arguments regarding that evidence (see Doc. 15).

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Plaintiff had left hippocampal sclerosis. The Doctor further 

stated that surgery was indicated.

Jones has argued that the Appeals Council should have 

remanded the action for a determination as to whether he had the 

severe impairment of seizure disorder and whether it met the 

requirements of Listing 11.03. The requirements of Listing 

11.03 are as follows:

Epilepsy-nonconvulsive epilepsy (petit 

mal, psychomotor, or focal), documented by 

detailed description of a typical seizure 

pattern, including all associated phenomena; 

occurring more frequently than once weekly 

in spite of at least 3 months of prescribed 

treatment. With alteration of awareness or 

loss of consciousness and transient 

postictal manifestations of unconventional 

behavior or significant interference with 

activity during the day.

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 11.03 (2015).

The Court first notes that the ALJ considered Plaintiff’s 

seizure activity in her decision, although it was referenced as 

pseudoseizure activity. As such, it was not necessary for the 

Appeals Council to remand the action back for the ALJ to 

consider whether the impairment was a seizure disorder. See 

Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (“the 

finding of any severe impairment, whether or not it qualified as 

a disability and whether or not it results from a single severe 

impairment or a combination of impairments that together qualify 

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as severe, is enough to satisfy the requirement of step two” of 

the sequential analysis). The Court finds that the addition of 

a specific diagnosis would not have changed the ALJ’s analysis 

of the impairment.

The Court further finds that the new evidence does not 

demonstrate that Jones meets the requirements of Listing 11.03 

in that there is no detailed description in it of a typical 

seizure; the ALJ already rejected the descriptions provided by 

Plaintiff and his wife. Furthermore, the evidence does not 

demonstrate that Plaintiff was having the seizures in spite of 

the fact that he has, for a period of at least three months, 

followed a medical regimen. The ALJ noted Jones’s noncompliance with his prescribed medications. Furthermore, Dr. 

Thead’s suggestion that Plaintiff was disabled does not make it 

so.

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

Appeals Council committed error in deciding not to remand the 

action back to the ALJ for consideration of the evidence 

regarding his seizures. The Court cannot say that the ALJ’s 

decision would be changed by the evidence submitted to the 

Appeals Council.

The Court will now consider the evidence provided to the 

Appeals Council regarding intellectual disability.

Neuropsychologist Ogden’s notes report Plaintiff’s 

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statement that he denied having to repeat a grade, having 

learning or attention difficulties, or being enrolled in special 

education classes (Tr. 415-17). Jones scored a Verbal IQ of 65 

on the WASI, but the results of the multiple tests given were 

generally in the average or low average range; Ogden said that 

Plaintiff’s global intellectual skills were in the borderline 

range.

Plaintiff asserts that evidence provided to the Appeals 

Council could have been found to meet the requirements for 

Listing 12.05C. 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 further notes that although the regulations 

require that Plaintiff demonstrate he suffered “deficits in 

adaptive behavior” before he turned twenty-two, 20 C.F.R. Part 

404, Subpart P, Appendix 1, Listing 12.05 (2015), the Eleventh 

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Circuit Court of Appeals, in Hodges v. Barnhart, 276 F.3d 1265, 

1266 (11th Cir. 2001), has held “that there is a presumption that 

mental retardation is a condition that remains constant 

throughout life.” The Hodges Court further held “that a 

claimant need not present evidence that she manifested deficits 

in adaptive functioning prior to the age of twenty-two, when she 

presented evidence of low IQ test results after the age of 

twenty-two.” Hodges, 276 F.3d at 1266. However, the 

presumption is rebuttable. Hodges, 276 F.3d at 1267. 

Jones has provided an IQ score that, on its face, satisfies 

one of the requirements of Listing 12.05C. However, Plaintiff’s 

activities of daily living would, most likely, provide the 

rebuttal of any presumption that he suffered deficits in 

adaptive functioning while growing up. This is reasonable to 

believe in light of the ALJ’s rejection of Plaintiff’s statement 

of his symptoms in light of these activities (Tr. 32-33). 

Furthermore, Jones’s ability to perform medium-exertion, skilled 

work (see Tr. 35) would not, likely, go unnoticed by the ALJ in 

his evaluation of Jones’s intellectual abilities. 

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

Appeals Council committed error in deciding not to remand the 

action back to the ALJ for consideration of the evidence 

regarding his intellectual disability. The Court cannot say 

that the ALJ’s decision would be changed by the evidence 

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submitted to the Appeals Council.

Jones raised two different claims in bringing this action. 

Both are 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 28th day of July, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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