IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

CHARLES YOUNG, : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 05-0504-M

JO ANNE B. BARNHART, : 

Commissioner of

Social Security, : 

Defendant. : 

MEMORANDUM OPINION AND ORDER

 In this action under 42 U.S.C. § 1383(c)(3), Plaintiff seeks

judicial review of an adverse social security ruling which denied

a claim for Supplemental Security Income (SSI). The parties

filed written consent and this action has been referred to the

undersigned Magistrate Judge to conduct all proceedings and order

the entry of judgment in accordance with 28 U.S.C. § 636(c) and

Fed.R.Civ.P. 73 (see Doc. 16). Oral argument was heard on March

15, 2006. Upon consideration of the administrative record, the

memoranda of the parties, and oral argument, 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 Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. RichardCase 2:05-cv-00504-M Document 18 Filed 03/16/06 Page 1 of 10
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Though Plaintiff testified at the hearing that he had only

finished the ninth grade (Tr. 122), he had previously told the Social

Security Administration that he had completed high school (Tr. 54).

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son v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test 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).

Plaintiff was born December 4, 1956. At the time of the

administrative hearing, Young was forty-eight years old, had

completed a high school education (see Tr. 20, ¶ 8; Tr. 54),1 and

had previous work experience as a construction laborer (Tr. 127). 

In claiming benefits, Plaintiff alleges disability due to

arthritis/bursitis, hypertension, and mild mental retardation

(Doc. 9).

The Plaintiff filed an application for SSI on October 23,

2003 (Tr. 48-49). Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although Young

could not perform his past relevant work, he could perform

unskilled, light to sedentary work with a sit/stand option (Tr.

18; see generally Tr. 8-20). Plaintiff requested review of the

hearing decision (see Tr. 3) by the Appeals Council, but it was

denied (Tr. 4-6).

Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence. Specifically, Young alleges

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

ALJ incorrectly determined his residual functional capacity; (3)

the ALJ did not develop the record; and (4) the ALJ did not

properly consider his complaints of pain (Doc. 10). Defendant

has responded to—and denies—these claims (Doc. 11).

Plaintiff claims that he meets the requirements for Listing

12.05C. 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 (2004). 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 (2005). 

On September 2, 2004, Psychologist Donald Blanton examined

Young and administered several psychological tests (Tr. 102-07). 

On the Wechsler Adult Intelligence Scale-III, Plaintiff scored a

Verbal IQ of 71, a Performance IQ of 68, and a Full Scale score

of 67, placing him in the mild range of mental retardation. On

the Wide-Range Achievement Test (Revised III), Young was found to

have a fourth-grade level ability to read, spell, and perform

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arithmetic. On the Beck Depression Inventory II, Plaintiff was

determined to be moderately depressed. Blanton stated that he

thought these scores were a valid assessment of his abilities. 

Accompanying the Psychologist’s medical notes was a form in which

he indicated his opinion that Young was markedly limited in his

ability to understand, remember, carry out, or use judgment in

detailed or complex instructions, respond to customary work

pressures, or maintain attention, concentration or pace for

periods of at least two hours (Tr. 106). 

The ALJ faithfully recorded Blanton’s opinions (Tr. 14), but

gave little weight to them as he had only seen Young once, his

opinions were unsupported by his own evaluation and seemed to be

based on Plaintiff’s own subjective complaints (Tr. 15). The ALJ

went on to note the absence of any prior history of mental

illness and Young’s adaptive functioning which he characterized

as “significantly higher” than that of someone suffering from

mental retardation (Tr. 17-18). 

The Court has reviewed the skimpy evidence of record and

finds that the ALJ’s conclusions are supported by substantial

evidence. There is no mention of mental retardation in the

record until Blanton tests for it; even on the form seeking

benefits, Plaintiff fails to list mental retardation or

impediment as a basis for disability (Tr. 51). Additionally,

Plaintiff’s work history demonstrates that he functions at a

higher level than he, apparently, tests academically and

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Diovan is used to treat hypertension. Physician's Desk

Reference 1841-43 (52nd ed. 1998). 

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intellectually (see, e.g., Tr. 52). The Court finds no error in

the ALJ’s rejection of Blanton’s opinions and in rejecting

Young’s claim that he meets the requirements of Listing 12.05C.

Plaintiff next claims that ALJ incorrectly determined his

residual functional capacity (hereinafter RFC). Young’s argument

is based on the opinions of Dr. Judy Cooke Travis which were

rejected by the ALJ (Doc. 10, pp. 2-3). The Court notes that the

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

404.1546 (2005).

Dr. Travis is the closest thing Young has to a treating

physician, having been examined three times over the course of

fourteen months. On November 13, 2003, the doctor saw Plaintiff

for complaints of left knee pain; the mostly-illegible records

indicate that Travis gave Young samples of Diovan2 to take for

high blood pressure (Tr. 97). 

The doctor examined Plaintiff again on January 14, 2004,

during which she noted that he was in no acute distress and

walked with a cane, though it appeared to be unnecessary (Tr. 98-

101). Travis noted, essentially, full range of motion in the

upper and lower extremities though he was unable to perform heelto-toe testing. There was no decreased mobility in the lumbar

spine; he was unable to squat. Because of the weakness in his

legs, Travis indicated that Young would have difficulties in

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performing “extended standing, walking, lifting, carrying and

traveling” (Tr. 101). 

A little more than a year later, Plaintiff again saw Travis

for the pain in his knees (Tr. 108). The evidence does not

demonstrate that the doctor actually performed a physical

examination though she gave him samples of Diovan and Celebrex. 

Dr. Travis completed a physical capacities evaluation in which

she indicated that Young was capable of sitting one hour,

standing thirty minutes, and walking twenty minutes at a time; he

could sit five hours, and stand and walk one hour each during an

eight-hour day (Tr. 109). The doctor further indicated that

Plaintiff could lift up to five pounds frequently and fifty

pounds occasionally; he could carry five pounds frequently and up

to twenty-five pounds occasionally. Young was capable of simple

grasping continuously, pushing and pulling of arm controls

frequently, and fine manipulation only occasionally; he could

only occasionally push and pull leg controls. Dr. Travis further

indicated that Plaintiff could only occasionally stoop, crouch,

kneel, crawl, climb, balance, and reach overhead (Tr. 110). The

doctor indicated that Plaintiff had suffered these limitations

for over a year. 

Dr. Travis also completed a pain assessment form in which

she stated that Plaintiff’s pain would distract him from

adequately performing his daily activities and that physical

activity would increase his pain to a degree as to be distracting

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or cause total abandonment of a task (Tr. 111). Pain would limit

Young’s effectiveness; Dr. Travis indicated that there was little

prognosis for improvement (Tr. 112).

The ALJ summarized all of this evidence (Tr. 12-14), but

gave little weight to her opinions as they were inconsistent with

her own clinical findings (Tr. 15). Without repeating all of the

ALJ’s findings, the Court notes the wide disparity in the

examinations of January 14, 2004 and January 25, 2005 (Tr. 98-

101; cf. Tr. 108-12); in the former, the medical evidence

demonstrates a patient in no acute distress with full range of

abilities while the latter describes, with no medical evidence to

support it, a person of very limited capabilities. The Court

finds that the ALJ properly rejected Dr. Travis’s conclusions of

extreme limitation and properly made his determination of Young’s

RFC based on Travis’s January 14, 2004 evaluation.

Plaintiff has also claimed that the ALJ failed to develop a

full, fair record. More specifically, Young argues that the ALJ

improperly rejected the conclusions of Dr. Travis from January

2005 and erred in not requiring a physical capacities evaluation

at the time of the 2004 examination (Doc. 10, pp. 3-6). The

Eleventh Circuit Court of Appeals has required that "a full and

fair record" be developed by the Administrative Law Judge even if

the claimant is represented by counsel. Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir. 1981). 

The Court has already rejected Plaintiff’s assertion that

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the ALJ improperly rejected Dr. Travis’s conclusions from her

January 2005 examination and will not repeat that discussion. As

for the second assertion, while it is true that Dr. Travis should

have completed a physical capacities evaluation as a part of her

January 2004 consultative evaluation, see 20 C.F.R. §

416.919n(c)(6) (2005), the Court finds that the examination, in

other respects, was complete. Specifically, Dr. Travis measured

range of motion in the extremities, noted normal mobility in the

lumbar spine, and noted vision and neurological deficits; Travis

also expressed the opinion that Young had some limitations as far

as standing, walking, lifting, and carrying (Tr. 98-101). Though

the medical notes from that examination did not state Plaintiff’s 

specific abilities, they provided a well-balanced assessment of

Young’s health from which the ALJ could determine his RFC at that

time. This Court finds that that assessment was supported by

substantial evidence. Plaintiff’s claim otherwise is without

merit.

Young’s final claim is that the ALJ did not properly

consider his complaints of pain. The standard by which the

Plaintiff's complaints of pain are to be evaluated requires "(1)

evidence of an underlying medical condition and either (2)

objective medical evidence that confirms the severity of the

alleged pain arising from that condition or (3) that the

objectively determined medical condition is of such a severity

that it can be reasonably expected to give rise to the alleged

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pain." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)

(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). 

The Eleventh Circuit Court of Appeals has also held that the

determination of whether objective medical impairments could

reasonably be expected to produce the pain was a factual question

to be made by the Secretary and, therefore, "subject only to

limited review in the courts to ensure that the finding is

supported by substantial evidence." Hand v. Heckler, 761 F.2d

1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d

428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th

Cir. 1986).

Young testified at the hearing that he suffers pain at seven

or eight on a scale of zero through ten (Tr. 123). The pain

throbs all the time, even with medications (Tr. 123-24). It is

necessary for Plaintiff to lie down two or three hours during the

day, every day (Tr. 124). Young stated that he could not walk

without a cane and could walk only a block with it; he could only

stand for three or four minutes and sit for ten minutes (Tr.

125). Additionally, he was unable to sweep, mop, wash dishes,

cook, or run short errands (Tr. 126). 

The ALJ reported Plaintiff’s testimony (Tr. 16), but

discounted it as inconsistent with the other medical evidence of

record (Tr. 16-18). Without recounting the inconsistencies

herein, the Court notes that the ALJ has set out specific

instances of Young’s mistaken notions of the truth. The Court

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finds that there is substantial evidence to support the ALJ’s

conclusion that Plaintiff’s pain and limitation are less than he

alleges.

Young has raised four different claims in bringing this

action. All 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 ben entered by separate order. 

DONE this 16th day of March, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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