IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES GARRETT, *

*

 Plaintiff, * CIVIL ACTION NO. 15-00082-B

 *

vs. *

*

CAROLYN W. COLVIN, *

Commissioner of Social *

Security, *

 *

Defendant. *

ORDER

Plaintiff James Garrett (hereinafter “Plaintiff”) seeks 

judicial review of a final decision of the 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. On October 9, 2015, the parties 

consented to have the undersigned conduct any and all 

proceedings in this case. (Doc. 23). 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.

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I. Procedural History

Plaintiff filed his applications for benefits on March 1, 

2011. (Tr. 181-87). Plaintiff alleged that he has been 

disabled since October 1, 2011,1 due to “right hand,” “ulcers,” 

“chest pain,” “right shoulder,” “bilateral leg,” and “back 

condition.” (Id. at 221, 227).

Plaintiff’s applications were denied and upon timely 

request, he was granted an administrative hearing before 

Administrative Law Judge Jack F. Ostrander (hereinafter “ALJ”)

on December 3, 2012. (Id. at 61). Plaintiff attended the 

hearing with his counsel and provided testimony related to his

impairments. (Id. at 65). A vocational expert (“VE”) also 

appeared at the hearing and provided testimony. (Id. at 64). 

On May 9, 2013, Plaintiff was granted a second administrative 

hearing before ALJ Ostrander, which he attended with his counsel 

and again provided testimony. (Id. at 43, 53). In addition, a 

second VE appeared at the hearing and provided testimony. (Id.

at 47). On July 23, 2013, the ALJ issued an unfavorable 

decision finding that Plaintiff is not disabled. (Id. at 37). 

 1 Plaintiff originally alleged onset dates of January 6, 2011, 

and February 27, 2011, but amended the onset date to October 1, 

2011. (Tr. 221-22). The ALJ referred to Plaintiff’s onset date 

as February 27, 2011. (Id. at 29). Plaintiff makes no issue of 

this date.

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The Appeals Council denied Plaintiff’s request for review on 

December 24, 2014 (Id. at 1-2). Therefore, the ALJ’s decision 

dated July 23, 2013, became the final decision of the 

Commissioner. 

Having exhausted his administrative remedies, Plaintiff 

timely filed the present civil action. (Doc. 1). The parties 

waived oral argument on October 9, 2015 (Doc. 22), 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. Issue on Appeal

Whether the ALJ erred in finding that 

Plaintiff does not meet the criteria for 

Listing 12.05B and 12.05C?

III. Factual Background

Plaintiff was born on October 1, 1968, and was forty-four

years of age at the time of his second administrative hearing on 

May 9, 2013. (Tr. 43, 222). Plaintiff testified that he was 

enrolled in special education classes in school and dropped out 

of school in the eighth grade. (Id. at 76). Plaintiff also 

testified that he can write his name, but he cannot read. 

(Id.).

According to Plaintiff’s testimony and Work History Report, 

he last worked in March 2011 as a laborer for a fish hatchery, a 

job he held for approximately twenty-four years. (Id. at 66, 

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228, 236). Plaintiff testified that he liked his job and that 

he stopped working because of back and hand pain and because his 

back “wouldn’t let [him] bend down.” (Id. at 66-67, 71). 

Plaintiff testified that he has a “slipped disc” in his 

back, and he has gout in his right hand which affects his grip. 

He described the pain in his back and right hand as an eight to 

ten on a ten-point pain scale. (Id. at 66-67, 69, 78). 

Plaintiff’s medications include Advil, Tramadol, Hydrocodone, 

Amitriptyline, and Prednisone. (Id. at 68, 262). 

Plaintiff testified that he owns his own home, that he has 

lived alone all of his life, and that he has always handled his 

own money. (Id. at 72-73, 244). He has never had a checking 

account; but he can count change and pays his bills with cash or 

money order. (Id. at 77-78, 250). He has no problems working 

with or getting along with other people or his boss. (Id. at 

72). He testified that he does not have any problems with his 

memory or concentration, although when he worked, he sometimes 

had problems following instructions. (Id. at 83-84). He can 

pay attention all day. (Id. at 252).

Plaintiff testified at the hearing and stated in his 

Function Report that he spends his time around his house each 

day, sweeping or mopping, or walking around the yard and playing 

with his dogs. (Id. at 74, 82). His routine includes getting 

up in the morning, getting dressed, fixing breakfast, cleaning

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house, cleaning outside around the house, and watching

television. (Id. at 82, 244). He prepares all of his own 

meals, does all of his own housework and laundry, does all of 

his own shopping, mows his own lawn, and has no problems with 

his personal care needs. (Id. at 248-50). He does not need to 

be reminded to take care of his personal needs or to take 

medication. (Id. at 249). He visits with friends and family 

once or twice a week. (Id. at 83, 251). He does not need 

anyone to accompany him when he goes out. (Id. at 251).

He does not drive or have a driver’s license. He took the 

oral driving test once and failed it. (Id. at 55, 75, 77). 

When he worked for the fish hatchery, he drove a boat. (Id. at 

84). He also uses public transportation. (Id. at 250).

IV. Analysis

A. Standard of Review 

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

role is a limited one. The Court’s review is limited to 

determining 1) whether the decision of the Secretary is 

supported by substantial evidence and 2) whether the correct 

legal standards were applied. 2 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). A court may not decide the facts 

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

 2 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).

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of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th 

Cir. 1986). The Commissioner’s findings of fact must be 

affirmed if they are based upon substantial evidence. 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 his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. 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 U.S.C. §§ 423(d)(1)(A); see also 20 C.F.R. §§ 

404.1505(a), 416.905(a). The Social Security regulations 

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provide a five-step sequential evaluation process for 

determining if a claimant has proven his disability.3 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 February 

27, 2011, the alleged onset date, and that he has the severe 

impairments of mild lumbar degenerative disc disease, bilateral 

shoulder pain, right hand gout, and status post stab wounds to 

the chest. (Tr. 29). The ALJ further found that Plaintiff does 

 3 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)).

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not have an impairment or combination of impairments that meets 

or medically equals any of the listed impairments contained in 

20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 31). 

The ALJ concluded that Plaintiff retains the residual 

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

light work, with the restrictions that Plaintiff “can sit 

approximately six hours in an eight-hour day; stand and walk 

approximately six hours in an eight-hour day; frequently handle, 

finger and feel with his right hand and continuously with his 

left hand; occasionally push and/or pull with his right hand, 

but continuously with his left hand; frequently push and/or pull 

with his right lower foot and frequently with the left foot; 

occasionally climb ramps, stairs, ladders and scaffolds; 

occasionally balance, kneel and crawl, but never stoop or crouch 

due to low back pain; and he is unable to read or write. (Id.

at 31). 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 not credible to the extent that they are 

inconsistent with the RFC assessment. (Id. at 32).

Utilizing the testimony of a VE, the ALJ found that

considering Plaintiff’s residual functional capacity for a range 

of light work, with the stated restrictions, as well as his age, 

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education, and work experience, Plaintiff is not capable of 

performing his past work as a fish hatchery laborer (heavy, 

unskilled) but that he can perform other work such as machine 

feeder/operator (sedentary, unskilled), and machine operator 

(light, unskilled). (Id. at 36-37). Thus, the ALJ concluded 

that Plaintiff is not disabled. (Id.).

The Court now considers the foregoing in light of the 

record in this case and the issues on appeal. 

1. Issue

Whether the ALJ erred in finding that 

Plaintiff does not meet the criteria for 

Listing 12.05B and 12.05C?

Plaintiff argues that the ALJ erred in finding that he

lacks the requisite deficits in adaptive functioning to meet the 

criteria for Listing 12.05B or 12.05C (mental retardation). 4

(Doc. 14 at 4-9). The Commissioner counters that the ALJ did 

not err in determining that Plaintiff does not satisfy the 

criteria for Listing 12.05 because the substantial evidence 

(such as Plaintiff’s twenty-four year working history, living 

 4 The Court notes at the outset that Plaintiff does not take 

issue with the ALJ’s findings related to his physical 

impairments or with the ALJ’s evaluation of the opinions of his 

treating physician, Dr. Perry Timberlake, M.D., or any other 

physician, related to the degree of Plaintiff’s physical 

limitations. Rather, Plaintiff argues only that the ALJ erred 

in failing to find that he met the cognitive criteria for 

Listing 12.05B and 12.05C. Therefore, the Court’s discussion of 

the medical evidence is limited to this issue. 

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independently and caring for his own personal needs all of his 

life, handling his own finances, and getting along with coworkers and bosses) reflects that Plaintiff lacks the adaptive 

functioning deficits required to meet Listing 12.05. (Doc. 19

at 3-8). Having carefully reviewed the record in this case, the 

Court agrees that Plaintiff’s claim is without merit.

In order for a claimant to meet Listing 12.05B (mental 

retardation), he must present evidence of “[a] valid verbal, 

performance, or full scale IQ of 59 or less.” Jackson v. 

Astrue, 2011 U.S. Dist. LEXIS 95629, *12, 2011 WL 3757894, *4 

(S.D. Ala. Aug. 25, 2011)(quoting 20 C.F.R. Part 404, Subpart P, 

Appendix 1, Listing 12.05B (2010)). Alternatively, in order for 

a claimant to meet Listing 12.05C, 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 work-related limitation of function.” 5 20 C.F.R. 

 5 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 

lumbar degenerative disc disease, bilateral shoulder pain, 

right hand gout, and status post stab wounds to the chest to be 

severe, and the parties do not dispute that finding. (Tr. 29). 

Therefore, the second prong of Listing 12.05C, requiring a 

physical or other mental impairment imposing an additional and 

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Part 404, Subpart P, Appendix 1 § 12.05(C). 

However, before a claimant can meet Listing 12.05B or 

12.05C, he must additionally satisfy the “diagnostic 

description” of mental retardation in Listing 12.05 (the listing 

category for mental retardation/intellectual disability),6 which 

provides that mental retardation “refers to significantly 

subaverage general intellectual functioning with deficits in 

adaptive functioning initially manifested during the 

developmental 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, §§ 12.05.

In this Circuit, it is presumed that a person’s IQ remains 

fairly constant throughout his or her life, and a valid IQ test 

score meeting the Listing criteria creates a rebuttable 

 

significant work-related limitation of function, is not in 

dispute in this action.

6 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. 

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presumption that the condition manifested itself before age 

twenty-two. Dragg v. Astrue, 2012 U.S. Dist. LEXIS 71717, *6, 

2012 WL 1885126, *3 (N.D. Ala. May 23, 2012) (citing Hodges v. 

Barnhart, 276 F.3d 1265, 1268–69 (11th Cir. 2001)); Jackson, 

2011 U.S. Dist. LEXIS 95629 at *12-13, 2011 WL 3757894 at *4. 

However, the Commissioner may present evidence of the claimant’s 

daily life to rebut the presumption of disability. Whetstone v. 

Barnhart, 263 F. Supp. 2d 1318, 1325 (M.D. Ala. 2003) (citing 

Hodges, 276 F.3d at 1269). The Eleventh Circuit has held that 

“a valid I.Q. score is not conclusive of mental retardation if 

the score is ‘inconsistent with other evidence in the record on 

the claimant’s daily activities and behavior.’” 7 Id. (citing 

 7 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. 

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Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Popp v. 

Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)). Accordingly, 

the ALJ is tasked with determining whether there is sufficient 

evidence (relating to plaintiff’s daily life) to rebut the 

Hodges presumption. See Grant v. Astrue, 255 Fed. Appx. 374, 

375 (llth Cir. 2007); Hartman v. Colvin, 2014 U.S. Dist. LEXIS 

 

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 

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 

12.05C 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). 

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91467, *7, 2014 WL 3058550, *3 (S.D. Ala. July 7, 2014).

In addition, as part of the disability determination 

process, the ALJ is tasked with weighing the opinions and 

findings of treating, examining, and non-examining physicians. 

In reaching a decision, the ALJ must specify the weight given to 

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). 

When weighing the opinion of a treating physician, the 

ALJ must give the opinions “substantial weight,” unless good 

cause exists for not doing so. Costigan v. Commissioner, Soc. 

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 

(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of 

Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v. 

Heckler, 776 F.2d 960, 962 (11th Cir. 1985)). The opinion of “a 

one-time examining physician — or psychologist,” on the other 

hand, is not entitled to the same deference as a treating 

physician. Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50, 

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford, 

363 F.3d at 1160). An ALJ is also “required to consider the 

opinions of non-examining state agency medical and psychological 

consultants because they ‘are highly qualified physicians and 

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psychologists who are also experts in Social Security disability 

evaluation.’” Milner v. Barnhart, 275 Fed. Appx. 947, 948 

(11th Cir. 2008) (unpublished) (citing 20 C.F.R. § 

404.1527(f)(2)(i)). “The ALJ may rely on opinions of nonexamining sources when they do not conflict with those of 

examining sources.” Id. (citing Edwards v. Sullivan, 937 F.2d 

580, 584-85 (11th Cir. 1991)). 

Whether considering the opinions of treating, examining, or 

non-examining physicians, good cause exists to discredit the 

testimony of any medical source when it is contrary to 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.” Sryock v. Heckler, 

764 F.2d 834, 835 (11th Cir. 1985) (per 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 this case, the ALJ found that Plaintiff did not meet 

Listing 12.05B or 12.05C because the evidence of Plaintiff’s 

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twenty-four year work history and daily life do not reflect the 

deficits in adaptive functioning sufficient to meet Listing 

12.05. (Tr. 30). In doing so, the ALJ rejected the opinions of 

examining psychologist, Dr. John Goff, Ph.D., as being 

inconsistent with the substantial evidence in the case.8 (Id. at 

30-31, 430-37).

The record shows that Dr. Goff examined Plaintiff on 

November 15, 2012, and conducted IQ testing, which resulted in a 

Full Scale IQ score of 58. (Id. at 434-35). Dr. Goff opined 

that Plaintiff’s Full Scale IQ score was compatible with his 

history, background, and presentation and indicated intellectual 

functioning in the mild mental retardation range. (Id.). Dr. 

Goff also noted that Plaintiff tested on a first grade level in 

reading and math. (Id.). Dr. Goff opined that Plaintiff had

difficulty with complex instructions, that he was functionally 

illiterate and thus would not be able to deal with written 

instructions, and that he had “numerous adaptive skills deficits 

present.” (Id.). Dr. Goff completed a Mental Source Statement 

(“MSS”) opining that Plaintiff had marked limitations in the 

areas of carrying out and remembering simple instructions;

responding appropriately to supervisors, co-workers, normal work 

 8 The ALJ appears to have accepted Plaintiff’s IQ test scores as 

valid but found that the substantial evidence showed that 

Plaintiff lacked the requisite deficits in adaptive functioning 

to meet Listing 1205B or 12.05C. (Tr. 30). 

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pressures, and changes in routine; exercising judgment in simple 

and complex work decisions; and in maintaining activities of 

daily living. (Id. at 436-37). Dr. Goff also opined that 

Plaintiff had extreme limitations in the areas of understanding 

and carrying out complex instructions; responding appropriately 

to the public; and maintaining attention, concentration, or pace 

for two hours. (Id. at 436). Dr. Goff opined that Plaintiff 

demonstrated deficits in adaptive functioning in the areas of 

self-care, self-direction, work, and functional academic skills. 

(Id. at 437). 

The ALJ rejected Dr. Goff’s opinions based on the fact that 

they were inconsistent with the substantial evidence in the 

case, including Dr. Goff’s own findings. For example, Dr. Goff 

opined in the MSS that Plaintiff has “marked” limitations in 

carrying out and remembering simple instructions. (Id. at 436). 

This opinion is contradicted by Dr. Goff’s own finding on the 

same day that Plaintiff “was able to understand, follow and 

carry out very simple instructions.” (Id. at 435).

In addition, Dr. Goff’s opinions in the November 15, 2012, 

report and MSS (id. at 430-37) are inconsistent with the 

remaining substantial evidence in the case, including the 

following: Dr. Goff opined that Plaintiff has “marked” 

limitations in responding appropriately to co-workers and 

supervisors (id. at 436-37), which is contradicted by 

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Plaintiff’s testimony that he had no problems working with other 

people or getting along with a boss. (Id. at 72). Dr. Goff 

also opined that Plaintiff has “extreme” limitations in the area 

of maintaining attention, concentration, or pace for two hours

(id. at 436), which is inconsistent with Plaintiff’s testimony 

and his statements to the Agency that he does not have any 

problems with his memory or concentration (id. at 83-84), that 

he can pay attention all day, and that when he starts a task, he 

finishes it. (Id. at 252). Dr. Goff also opined that Plaintiff 

had “marked” limitations in his ability to handle changes in 

routine (id. at 436), which is contradicted by Plaintiff’s 

statement to the Agency that he can handle changes in routine 

“okay.” (Id. at 253).

Dr. Goff also opined that Plaintiff had “marked” 

limitations in maintaining activities of daily living (id. at 

437), which is completely inconsistent with Plaintiff’s 

testimony that he owns his own home, that he has lived alone his 

entire adult life, that he handles his own money (id. at 72-73, 

244, 250), that he can count change and pay his bills with cash 

or money order (id. at 77-78, 250), that he prepares all of his 

own meals, does all of his own housework, laundry, and shopping, 

mows his own lawn, and has no problems with his personal care 

needs (Id. at 74, 82, 244, 248-50), that he visits with friends 

and family at least once or twice a week (id. at 83, 251), that 

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he does not need to be reminded to take care of his personal 

needs or to take his medication (id. at 249), and that he does 

not need anyone to accompany him when he goes out. (Id. at 

251).

In addition to the foregoing, Dr. Goff’s opinions in the 

November 15, 2012, report and MSS (id. at 430-37) are 

inconsistent with the evidence related to Plaintiff’s 

significant work history, including the fact that he maintained 

regular, consistent employment for twenty-four years at a fish 

hatchery, where he performed functions including driving a boat. 

(Id. at 66, 84). 

In addition, Dr. Goff’s findings are inconsistent with the 

findings of consultative physical examiner, Dr. Robert 

MacGregor, M.D., that Plaintiff “is able to bathe, dress, use 

the toilet, eat, cook, wash dishes, do laundry, and drive 

without difficulty.”9 (Id. at 282). Dr. MacGregor noted, “ [h]e 

currently does not have a car because it was repossessed.” (Id.

at 283). Dr. MacGregor continued, “[h]e spends most of his day 

visiting friends and family, cleaning the house, sitting around 

and talking, and bathing.” (Id.). Based on the foregoing, the 

Court finds that the ALJ had good cause to reject the opinions 

 9 While the evidence reflects that Plaintiff does not have a 

drivers license and that he failed the driving test after 

attempting the oral examination one time, he does have the 

ability to drive. (Tr. 75, 282-83).

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of evaluating psychologist, Dr. Goff, as being inconsistent with 

the substantial evidence in the case. 

The Court is also aware, as was the ALJ, of Plaintiff’s 

poor academic performance in school and his special education 

classes. (Id. at 264-70). However, as the ALJ found, even 

considering this evidence, the substantial evidence in this case 

reflects a level of functioning that is higher than Plaintiff’s 

Full Scale IQ score of 58 would indicate and does not satisfy 

the deficits in adaptive functioning required for Listing 12.05. 

Finally, Plaintiff argues that the ALJ erred in failing to 

apply the new definition of adaptive functioning set forth in 

the most recent edition of the DSM, the DSM-5, 10 and instead 

 10 The DSM–5 provides in pertinent part: 

Intellectual disability (intellectual 

developmental disorder) is a disorder with 

onset during the developmental period that 

includes both intellectual and adaptive 

functioning deficits in conceptual, social, 

and practical domains. The follow three 

criteria must be met:

A. Deficits in intellectual functions, such 

as reasoning, problem solving, planning, 

abstract thinking, judgment, academic 

learning, and learning from experience, 

confirmed by both clinical assessment and 

individualized, standardized intelligence 

testing.

B. Deficits in adaptive functioning that 

result in failure to meet developmental and 

socio-cultural standards for personal 

independence and social responsibility. 

Without ongoing support, the adaptive 

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applied the old definition of adaptive functioning set forth in 

the DSM-IV. (Doc. 14 at 7-9). This argument fails for two 

reasons. First, Plaintiff has failed to show that the Social 

Security Administration has changed its criteria for evaluating 

Listing 12.05 based on the new definition contained in the DSM5. Second, even if the Court were to apply the new definition 

of adaptive functioning in the DSM-5, the evidence in this case 

that Plaintiff has always lived independently, that he 

successfully maintained employment for twenty-four years, that 

he has always taken care of his own finances, and that he has 

always taken care of his own personal needs establishes that he 

lacks the required deficits in adaptive functioning under the

DSM-5 definition as well. See Hightower v. Commissioner of Soc. 

Sec. Admin., 2015 U.S. Dist. LEXIS 110820, *53, 2015 WL 5008668, 

*17 (D.S.C. June 12, 2015), report and recommendation adopted as 

modified by, 2015 U.S. Dist. LEXIS 110117, 2015 WL 5008713 

(D.S.C. Aug. 20, 2015) (rejecting a similar argument and noting 

that Listing 12.05 has not been updated by the SSA to reflect 

 

deficits limit functioning in one or more

areas of daily life, such as communication, 

social participation, and independent 

living, across multiple environments, such 

as home, school, work, and community.

C. Onset of intellectual and adaptive 

deficits during the developmental period. 

DSM–5 (2013); see also Hightower, 2015 U.S. Dist. LEXIS 110820

at *53, 2015 WL 5008668 at *17.

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the changes present in the DSM-5, which calls into question its 

applicability to Listing 12.05); Harley v. Colvin, 2015 U.S. 

Dist. LEXIS 174876, *14 n.4, 2015 WL 9699531, *5-7 n.4 (E.D.N.C. 

Dec. 2, 2015), report and recommendation adopted by 2016 WL 

126372 (E.D.N.C. Jan. 11, 2016) (noting that, because the SSA 

has not based its definition of intellectual disability in 

Listing 12.05 solely on the American Psychiatric Association’s 

definition in the DSM–IV, but also on the definitions used by 

three other leading professional organizations, and that because 

the SSA has expressly stated that it does not “seek to endorse 

the methodology of one professional organization over another,”11

“it remains appropriate to reference the diagnostic criteria in 

the DSM–IV in applying Listing 12.05C.”). 

Having reviewed this case at length, the Court finds that 

substantial evidence supports the ALJ’s finding that Plaintiff 

does not meet Listing 12.05B or 12.05C because the evidence of 

Plaintiff’s work history, medical records, and activities of 

daily living rebuts the presumption of mental retardation and 

supports the ALJ’s finding that Plaintiff can perform a range of 

light work, with the stated restrictions, such as a machine 

feeder/operator (sedentary, unskilled), and machine operator 

 11 See Harley, 2015 U.S. Dist. LEXIS 174876 at *14 n.4, 2015 WL 

9699531 at *5 n.4 (quoting the Technical Revisions to Medical 

Criteria for Determinations of Disability, 67 Fed. Reg. 20018–

01, 2002 WL 661740 at 20022 (SSA 24 Apr. 2002)). 

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(light, unskilled) (id. at 36-37), and, thus, is not disabled. 

Accordingly, Plaintiff’s claim must fail.

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 28th day of March, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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