1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANGELA ROBINSON, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15-0078-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1381(c)(3), 

Plaintiff seeks judicial review of an adverse social security 

ruling denying a claim for disability insurance benefits and 

Supplemental Security Income (hereinafter SSI) (Docs. 1, 13-14). 

The parties filed written consent and this action was 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. 20). Oral argument was waived in this 

action (Doc. 22). 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 administrative hearing, Robinson was 

forty-seven years old, had completed an eight-grade education 

(see Tr. 271), and had previous work experience as a certified 

nurse assistant (hereinafter CNA), a clean-up worker, and 

hospital housekeeper (Tr. 80-81). Plaintiff alleges disability 

due to major depressive disorder, panic disorder, degenerative 

disc disease, back pain, head injury, dermatitis, Post Traumatic 

Stress Disorder (hereinafter PTSD), mild mental retardation, and 

right arm pain (Doc. 14).

The Plaintiff applied for disability benefits and SSI on 

September 2, 2011, asserting an onset date of August 18, 2011 

(Tr. 18, 193-202). An Administrative Law Judge (ALJ) denied 

benefits, determining that although she could not return to her 

past relevant work, there were specific light work jobs that 

Robinson could perform (Tr. 18-45). Plaintiff requested review 

of the hearing decision (Tr. 9-13), but the Appeals Council

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denied it (Tr. 1-6).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Robinson

alleges that: (1) The ALJ improperly discounted her testimony; 

(2) the ALJ did not accord proper weight to the opinions of 

particular examiners; (3) the ALJ failed to properly assess her 

PTSD; (4) she meets the requirements of two different Listings; 

and (5) the Appeals Council did not properly consider newlysubmitted evidence (Doc. 13). Defendant has responded to—and 

denies—these claims (Doc. 17). The Court’s summary of the 

relevant evidence follows.

On May 3, 2011, Robinson was seen at Anderson Family 

Medical Center for complaints of back pain, radiating into her 

legs; she was prescribed medication refills (Tr. 394-95). On 

September 7, Plaintiff complained of depression, insomnia, and 

pain in her right arm and back (Tr. 390-91). On September 28, 

Robinson was looking to get shots for her back pain (Tr. 388-

89). 

On October 20, Plaintiff went to Weems Community Mental 

Health Center (hereinafter Weems), stating that she was 

suffering panic attacks, depression, nightmares, and severe 

anxiety from an event seven years earlier wherein her husband 

attacked her with a sledgehammer; though he had gone to prison, 

he had since been released and she reported that he tried to run 

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her off the road with his car in July 2011 (Tr. 426-32). 

Robinson had previously received disability, but it was stopped 

after she started working (Tr. 386); she reported that she had 

last worked in August 2011, but quit after pushing her 

supervisor in frustration. Though Plaintiff had undergone 

reconstructive surgery on her arm after her husband’s 

sledgehammer attack, she reported no physical impairments. 

Robinson’s thought content was logical and short- and long-term 

memory was intact; judgment was thought to be moderately 

impaired. Plaintiff was diagnosed to have Depressive Disorder, 

NOS, Anxiety Disorder, NOS, and PTSD. On November 3, 2011, 

Weems reported that Plaintiff was taking Celexa,1 Klonopin,2 and 

Trazodone;3 she stated she was unable to concentrate but her 

medications helped (Tr. 422-24). Insight and judgment were 

fair. On January 25, 2012, Robinson reported doing better with 

her depression, but was having headaches; Vistaril4 was 

prescribed (Tr. 419-20). 

On November 15, 2011, Psychologist Nina E. Tocci reported 

that Robinson was unable to wait in her waiting room because 

																																																							 1Celexa is used in treating depression. Error! Main Document 

Only.Physician's Desk Reference 1161-66 (62nd ed. 2008). 2

Klonopin is a class four narcotic used for the treatment of 

panic disorder. Error! Main Document Only.Physician's Desk Reference

2732-33 (62nd ed. 2008). 3

Error! Main Document Only.Trazodone is used for the treatment of 

depression. Physician's Desk Reference 518 (52nd ed. 1998).

4Vistaril is used to treat anxiety and tension and may be used to 

control nausea and vomiting. http://www.drugs.com/vistaril.html

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 4 of 27
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there was a man sitting there and she was scared (Tr. 289-93). 

Affect was appropriate and normal; she demonstrated forced 

attention and concentration. Plaintiff had a poor fund of 

information and comprehension; she had logical thought 

organization and her thought content was appropriate. Robinson 

had difficulty remaining focused and used breathing techniques 

and self-talk to remain calm. She had good insight and fair 

social judgment; Tocci thought she was functioning within the 

borderline range of intellectual ability. The Psychologist’s 

impression was recurrent, moderate Major Depressive Disorder and 

Panic Disorder with a poor prognosis; she indicated that she 

would have difficulty learning, performing, and completing job 

tasks. Tocci indicated Robinson’s GAF was 55.5

On November 21, 2011, Dr. Richard S. Abney examined 

Plaintiff who was breathing in a paper bag during most of the 

exam; accompanying family members said she had a history of 

headaches, a residual of her husband’s attack, but had no other 

physical problems (Tr. 299-304; cf. Tr. 324-27). Straight leg 

raise was limited to 60o; Robinson mentioned low back—but no 

radicular—pain. She had normal range of motion (hereinafter 

ROM) in her upper and lower extremities and had normal gait. 

																																																							 5Error!	Main	Document	Only.“A GAF score between 51-60 indicates 

“moderate symptoms (e.g., flat affect and circumstantial speech, 

occasional panic attacks) or moderate difficulty in social, 

occupational or school functioning (e.g., few friends, conflicts with 

peers or co-workers).” American Psychiatric Association, Diagnostic 

and Statistical Manual of Mental Disorders, 32 (4th ed. 1994). 

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 5 of 27
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Dr. Abney’s impression was depression, panic attacks, 

hyperventilation, and traumatic injury (with no corresponding 

physical findings) by history.

On November 29, 2011, Linda Duke, a non-examining 

Psychologist reviewing Robinson’s file as of that time, 

completed a Psychiatric Review Technique Form, indicating that 

Plaintiff suffered from borderline intellectual functioning and 

had a recurrent, moderate Major Depressive Disorder and a panic 

disorder (Tr. 306-19). Duke suggested that Plaintiff had mild 

restrictions of daily living activities, moderate difficulties 

in maintaining social functioning and in maintaining 

concentration, persistence, or pace, and had had no episodes of 

decompensation of extended duration. On that same day, Duke 

completed a mental residual functional capacity assessment, 

indicating that Plaintiff would be moderately limited in her 

ability to understand, remember, and carry out detailed 

instructions; maintain attention and concentration for extended 

periods; interact appropriately with the general public; accept 

instructions and respond appropriately to criticism from 

supervisors; and maintain socially appropriate behavior and

adhere to basic standards of neatness and cleanliness (Tr. 320-

23). Duke found no marked limitations.

On December 15, Robinson went to the Anderson Regional 

Medical Center Emergency Room following a motor vehicle 

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accident, causing head, neck, and lower back pain rated at two 

on a ten-point scale (Tr. 332-51). An x-ray of the lumbosacral 

spine disclosed no fracture or dislocation though there was 

anterior spurring at the L3-4 level with modest posterior 

spurring at the L3-4 level and disc space narrowing at the L5-S1 

level; a chest x-ray was unremarkable. A brain CT demonstrated 

reversal of normal cervical curvature with mild posterior 

spurring at the C4-5 level. 

On February 14, 2012, Dr. Katherine Hensleigh examined 

Robinson for a rash on her face and under her stomach (Tr. 435-

39). Plaintiff had normal ROM, muscle strength, and stability 

in all extremities with no pain; she was oriented in four 

spheres, had normal insight and exhibited normal judgment. The 

records showed that Robinson had prescriptions for Lortab6 and 

Flexeril.7 On May 9, Dr. Hensleigh examined Plaintiff for a mole 

on the side of her neck and eczema on the soles of her feet; the 

Doctor noted moderate abdominal tenderness (Tr. 513-15). On May 

30, Robinson was experiencing a cough, sinus pressure, and sore 

throat; though Robinson no longer had abdominal tenderness,

Hensleigh noted tenderness in the lumbar spine with mild pain on 

																																																							 6Error! Main Document Only.Lortab is a semisynthetic narcotic 

analgesic used for “the relief of moderate to moderately severe pain.” 

Physician's Desk Reference 2926-27 (52nd ed. 1998).

7Error!	Main	Document	Only.Flexeril is used along with “rest and 

physical therapy for relief of muscle spasm associated with acute, 

painful musculoskeletal conditions.” Physician's Desk Reference 1455-

57 (48th ed. 1994).

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motion (Tr. 510-12). On June 5, 2012, Plaintiff complained of 

lower back pain, radiating into both calves; she had moderate 

abdominal tenderness and moderate pain with motion in the lumbar 

spine (Tr. 507-09). The Doctor gave her an injection of 

Demerol,8 Phenergan,9 and Decadron.10 On June 15, Robinson was 

having problems with hypertension; she had normal ROM, muscle 

strength, and stability in all extremities with no pain (Tr. 

504-06). Hensleigh noted insomnia and generalized anxiety 

disorder. 

On August 15, Plaintiff went to Alabama Mental Health 

Center (hereinafter AMHC), complaining that she was 

uncomfortable being out in public (Tr. 470-73). On October 24, 

her Doctor noted that Robinson was oriented in four spheres with 

her memory intact and reasoning good; thought processes were 

logical (Tr. 477-78). Her mood was anxious while judgment and 

impulse control were fair; Plaintiff was diagnosed to have PTSD 

and recurrent major depression. Over a six-month period 

beginning in August 2012, she attended five individual and 

family counseling; Robinson’s sleep and appetite improved (Tr. 

																																																							 8Error!	Main	Document	Only.Demerol is a narcotic analgesic used for 

the relief of moderate to severe pain. Physician's Desk Reference

2570-72 (52nd ed. 1998).

9Error!	Main	Document	Only.Phenergan is used as a sedative, sleep aid, 

or to treat nausea, vomiting, or pain. 

http://www.drugs.com/phenergan.html

10Error!	Main	Document	Only.Decadron is a corticosteroid used for, 

among other things, the treatment of rheumatic disorders. Physician's 

Desk Reference 1635-38 (52nd ed. 1998). 

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465-69).

On September 12, 2012, Plaintiff saw Dr. Hensleigh who 

noted tenderness, and mild pain on motion, in the lumbar spine 

for which she was given an injection including Toradol11 (Tr. 

500-03). On October 5, Robinson had cold symptoms and was 

feeling fatigued and malaise and experiencing back and joint 

pain; Dr. Hensleigh noted no abdominal tenderness though there 

was tenderness and mild pain in the lumbar spine (Tr. 496-99). 

On November 12, Plaintiff went to the Choctaw General 

Hospital Emergency Department for complaints of back pain; it 

was noted that she had ROM intact for all extremities with no 

muscle weakness (Tr. 446-51). Robinson received a Toradol 

injection. On December 5, Plaintiff returned to the Emergency 

Department because of back pain radiating into the left thigh; 

she had full ROM with no muscle weakness (Tr. 441-45). She 

received an injection.

On January 8, 2013, Dr. Hensleigh examined Plaintiff for 

back pain; the Doctor characterized the pain as moderate and 

gave her an injection (Tr. 492-95). On January 15, an MRI of 

the lumbar spine demonstrated degenerative changes of the L3-4 

and L-S1 levels (Tr. 521). More specifically, there was “disc 

desiccation noted from L3-L4 through the L5-S1 levels. Mild to 

																																																							 11Toradol is prescribed for short-term (five days or less) 

management of moderately severe acute pain that requires analgesia at 

the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998). 

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 9 of 27
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space narrowing noted at these levels and greatest at the L3-L4 

level” (Tr. 521). At L5-S1, there was a disc bulge resulting in 

mild effacement of the ventral thecal sac but no significant 

effacement of the nerve root (Tr. 521). On January 29, 2013, 

Robinson’s back still hurt, so she received another injection 

(Tr. 488-91). On February 6, Plaintiff saw her doctor for cold 

symptoms; her back pain was only mild, but she received another 

injection (Tr. 484-87). 

On February 5, Robinson reported to AMHC that she was 

having visual hallucinations but stated she was resting better 

with Zoloft12 and Trazodone; she complained of tension and pain 

in her back (Tr. 474-76). Her mood was irritable and depressed; 

her intellect was thought to be average. Impulse control and 

judgment were good. Her Zoloft prescription was increased.

On February 18, Dr. Lenard Rutkowski examined Robinson for 

complaints of low back pain radiating into the left thigh and 

leg (Tr. 526-28). On exam, the Doctor noted sacroiliac joint 

tenderness and that straight leg raising was abnormal 

bilaterally; she also had a pulling sensation bilaterally at 

ninety degrees. Plaintiff had full strength in all extremities. 

She was referred to physical therapy and underwent three 

sessions over a two-week period (Tr. 453-62).

																																																							 12Error!	Main	Document	Only.Zoloft is “indicated for the treatment of 

depression.” Physician's Desk Reference 2229-34 (52nd ed. 1998). 

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On March 6, Psychologist Donald W. Blanton examined 

Robinson who looked sad and scared; thoughts were logical and 

associations were intact with no confusion (Tr. 479-82). 

Plaintiff complained of anxiety and was restless; she was 

depressed and cried often. The Psychologist indicated she 

appeared to have slight psychomotor retardation; insight was 

limited but her judgment was good for work and financial 

decisions. On the Wechsler Adult Intelligence Scale, Fourth 

Edition, Robinson obtained a Full Scale IQ score of 65, placing 

her in the mild range of mental retardation. On the Wide Range 

Achievement Test, she scored a third grade level of reading, 

spelling, and math. The Beck Depression Inventory II 

demonstrated that she was seriously depressed. It was Blanton’s 

opinion that the test results were valid; his diagnostic 

impression was that she had PTSD, pain disorder with depression, 

mild mental retardation, and orthopedic problems. The 

Psychologist indicated his opinion that Robinson had marked 

limitations in her ability to understand, remember, carry out, 

and use judgment in detailed or complex instructions, respond to 

customary work pressures, and maintain attention and 

concentration and pace for at least two hours. Blanton thought 

this was a lifelong condition; he further indicated that she had 

demonstrated deficits in adaptive functioning, before she was 

twenty-two years of age, in communication, social interpersonal 

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 11 of 27
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skills, work, health safety, and functional academic skills.

On June 3, 2013, the ALJ entered his decision, finding that 

Plaintiff was capable of performing light, unskilled jobs and 

was, therefore, not disabled (Tr. 18-45). This concludes the 

Court’s summary of the evidence.

In bringing this action, Plaintiff first claims that the 

ALJ did not properly consider her testimony of pain and 

limitation (Doc. 13, pp. 10-14). The standard by which 

Robinson’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 

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 

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(11th Cir. 1986). Furthermore, the Social Security regulations 

specifically state the following:

statements about your pain or other symptoms 

will not alone establish that you are 

disabled; there must be medical signs and 

laboratory findings which show that you have 

a medical impairment(s) which could 

reasonably be expected to produce the pain 

or other symptoms alleged and which, when 

considered with all of the other evidence 

(including statements about the intensity 

and persistence of your pain or other 

symptoms which may reasonably be accepted as 

consistent with the medical signs and 

laboratory findings), would lead to a 

conclusion that you are disabled.

20 C.F.R. 404.1529(a) (2015).

In his decision, the ALJ discounted Robinson’s statements 

for multiple reasons. The first was that she testified about 

medical treatment that she had received that indicated possible 

future surgery; the ALJ noted that the evidence was not in the 

record (Tr. 35). Though Plaintiff takes offense at the ALJ’s 

finding (Doc. 13, p. 10), the fact remains that the records were 

not made available to the ALJ before his decision date of June 

3, 2013, even though the examination took place on May 8 (see

Tr. 538-39). Social security regulations state that a claimant 

is responsible for providing evidence from which the ALJ can 

make an RFC determination. 20 C.F.R. § 404.1545(a)(3) (2015). 

Next, the ALJ found that Robinson’s testimony of lost grip 

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in her right hand and use of the right arm, generally, was 

unsupported by the medical records as she had returned to 

medium-level work following medical treatment for the right arm 

injuries inflicted on her by her ex-spouse (Tr. 36). Plaintiff 

does not challenge this credibility finding (Doc. 13, pp. 10-

14).

The ALJ discounted Robinson’s headaches as unsupported by 

the evidence as her complaints were infrequent (Tr. 36). 

Plaintiff does not challenge this finding (Doc. 13, pp. 10-14).

The ALJ discounted Robinson’s pain as less extensive than 

alleged, noting that the objective medical evidence did not 

support her assertions (Tr. 36-37). Though Plaintiff, in her 

brief, summarizes subjective complaints made to various doctors 

during her treatment history (Doc. 13, p. 13), she fails to 

point to objective evidence supporting those complaints.

The ALJ also found inconsistency in Robinson’s reports of 

when she let her driver’s license expire (Tr. 37). Though 

Robinson argues that this is not important as the ALJ failed to 

question her about it at the evidentiary hearing (Doc. 13, p. 

12), the inconsistency remains unexplained and a reason for the 

ALJ to discount her testimony.

The ALJ also found Plaintiff not credible in testifying 

that she had had no vocational training, though having 

previously reported that she had been trained as a CNA (Tr. 39; 

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cf. Tr. 71, 225).13

The ALJ discussed Robinson’s stress, depression, and 

anxiety, caused in large part by her former husband’s attack 

(Tr. 37). He then noted that the “record contains different 

accounts of when the sledgehammer attack occurred and the nature 

of the attack” (Tr. 37). In response, Plaintiff has summarized 

her reports to various treating sources to show the consistency 

of her testimony (Doc. 13, pp. 10-12). The Court carefully 

checked those reports and concludes that the ALJ’s timeline of 

events appears to be out of sync with the events as they 

factually occurred. Nevertheless, the ALJ’s error is harmless 

when considered alongside Robinson’s failure to address—much 

less provide evidence to rebut—the ALJ’s conclusions that she 

had not lost the use of her right arm, that she suffered

headaches only irregularly, and that there is no objective 

evidence to support her claims of pain and limitation. The 

Court finds substantial support for the ALJ’s conclusion that 

Robinson was not a credible source of information.

Plaintiff also claims that the ALJ did not accord proper 

weight to the opinions of particular examiners. Specifically, 

																																																							 13The Court rejects Plaintiff’s argument that because the ALJ did 

not question her about her training or work as a CNA he cannot use it 

to discredit her (see Doc. 13, p. 24). The Court, in reviewing the 

more than five hundred pages of this transcript, came across several 

instances wherein Robinson indicated that she had been a CNA (Tr. 225, 

422, 479).

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 15 of 27
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Robinson points to the opinions of Psychologist Tocci and 

Blanton (Doc. 13, pp. 14-19). It should be noted that "although 

the opinion of an examining physician is generally entitled to 

more weight than the opinion of a non-examining physician, the 

ALJ is free to reject the opinion of any physician when the 

evidence supports a contrary conclusion." Oldham v. Schweiker, 

660 F.2d 1078, 1084 (5th Cir. 1981);14 see also 20 C.F.R. § 

404.1527 (2015).

In his decision, the ALJ gave little weight to Tocci’s 

assessment as unsupported by the other evidence of record and 

because the Psychologist “relied quite heavily on the subjective 

report of symptoms and limitations provided by the claimant” 

(Tr. 41). He also gave little weight to Blanton’s assessment 

for the same reasons (Tr. 41-42). 

The Court notes that the two Psychologists’ opinions were 

inconsistent with findings in their own reports. Specifically, 

Tocci found Plaintiff to have appropriate thought content and a 

logical thought organization; she had good insight (Tr. 291). 

Blanton found that Robinson’s thoughts and conversation were 

logical with associations intact; she was oriented in four 

spheres and had good judgment for work and financial decisions 

(Tr. 479-80).

																																																							

					 14The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 16 of 27
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The Court further notes that Tocci’s and Blanton’s opinions 

find no support in the records of the Weems Community Mental 

Health Center (Tr. 419-32) or the Alabama Mental Health Center 

(Tr. 465-78). Specifically, at Weems, on January 25, 2012, 

Robinson’s depression was better and her only problem was her 

headaches; her thought processes were organized (Tr. 419). In 

the prior examination, her intelligence was rated as average 

(Tr. 423). Two different doctors at the AMHC indicated that 

Plaintiff was of average intelligence, oriented in four spheres, 

with good reasoning, good insight, appropriate affect, intact 

memory, and logical thought processes (Tr. 475, 477-78). Though 

the Centers reported Robinson’s problems as she reported them, 

neither one indicated that she was unable to function in the 

workplace.

In bringing this claim, Robinson takes exception to the 

ALJ’s reliance on non-examining Psychologist Duke in reaching 

his decision (Doc. 13, pp. 16-19; cf. Tr. 41, 306-19). The 

Court notes that a non-examining physician’s opinions can be 

given greater evidentiary weight than the opinions of an 

examining source so long as they are well-supported by the 

evidence of record. 20 C.F.R. § 404.1527(c and e); 20 C.F.R. § 

416.927(c and e). While it is true that Psychologist Duke never 

examined Plaintiff and relied only on the records in existence 

at that time, her opinions more closely resembled the opinions 

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 17 of 27
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expressed by her treating sources (Weems and AMHC) than those of 

one-time examiners Tocci and Blanton. For all of these reasons, 

the Court finds substantial support for the ALJ’s determinations 

in rejecting the opinions of the two Psychologists.

Robinson next claims that the ALJ failed to properly assess 

her PTSD (Doc. 13, pp. 19-22). More particularly, Plaintiff 

argues that the impairment should have been found to be a severe 

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

1984), 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).15 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). It is also 

noted that, under SSR 96-3p, “evidence about the functionally 

																																																							 				 15"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."

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 18 of 27
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limiting effects of an individual’s impairment(s) must be 

evaluated in order to assess the effect of the impairment(s) on 

the individual’s ability to do basic work activities.” 

In his decision, the ALJ listed specific impairments that 

he found severe; though depression and panic disorder were 

listed, PTSD was not (Tr. 20-21). The ALJ discussed Plaintiff’s 

mental impairments, finding them severe, but not disabling (Tr. 

37-40). The ALJ also specifically determined that her mental 

impairments did not satisfy Listing 12.06 for Anxiety Related 

Disorders.16 The Court notes that the ALJ extensively discussed 

the events (her husband’s attack and threat of a second attack) 

that led to the PTSD diagnosis in reaching his conclusion as 

Plaintiff’s telling and re-telling of the incidents pervades the 

record. Nevertheless, Robinson has not shown how her PTSD 

diminished her ability to work to any greater extent than her 

depression, panic disorder, and anxiety already did (Doc. 13, 

pp. 19-22). Though the ALJ should have made a specific 

determination as to the severity of her PTSD, his failure to do 

so was, at most, harmless error.

Plaintiff claims that the ALJ improperly determined that 

she did not meet the requirements of two different Listings; the 

first is Listing 12.04 for Affective Disorders and the other is 

																																																							 16Under the Social Security Administration’s Program Operations 

Manual System DI 34001.032D.11, PTSD is an anxiety disorder. See

https://secure.ssa.gov/poms.nsf/lnx/0434001032#di34001032_mentalanxiety

Case 1:15-cv-00078-M Document 23 Filed 11/05/15 Page 19 of 27
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Listing 12.05C for Intellectual Disability (Tr. 13, pp. 22-28). 

The Court will address these issues separately.

Robinson first asserts that she meets the requirements of 

Listing 12.04 for Affective Disorders. Plaintiff asserts that 

she meets the following requirements:

A claimant meets Listing 12.04 when the 

evidence shows a depressive syndrome 

characterized by at least four of the following: 

anhedonia or pervasive loss of interest in almost 

all activities; or appetite disturbance with 

changes in weight; or sleep disturbance; or 

psychomotor agitation or retardation; or 

decreased energy; or feelings of guilt or

worthlessness; or difficulty concentrating or 

thinking; or thoughts of suicide; or 

hallucinations, delusions or paranoid thinking. 

The syndrome must result in at least two of the 

following: marked restriction of activities of 

daily living; or marked difficulties in 

maintaining social function; or marked 

difficulties in maintaining concentration, 

persistence, or pace; or repeated episodes of 

decompensation, each of extended duration. 20 

C.F.R. 404, Subpart P, Appendix 1, Listing 12.04.

(Doc. 13, p. 22). After setting out the requirements she 

asserts she meets, Robinson listed all of the instances in the 

medical record where she complains of the various symptoms. She 

does not, however, point to records where medical professionals 

indicate their belief that she suffers these symptoms and find 

her unable to work. The ALJ found Plaintiff’s complaints 

unsupported by the medical evidence, a finding substantially 

supported by the evidence. Robinson’s complaints garner no more 

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support in this claim than previously. As such, Plaintiff has 

failed to demonstrate that she meets the requirements of 

subsection A of the Listing, obviating the need for the Court to 

discuss the subsection B requirements.17 See 20 C.F.R. Part 404, 

Subpart P, Appendix 1, Listing 12.04 (2015) (“The required level 

of severity for these disorders is met when the requirements in 

both A and B are satisfied, or when the requirements in C are 

satisfied”). Robinson’s claim that she meets the requirements 

of Listing 12.04 is without merit.

Plaintiff also asserts that she meets the requirements of 

Listing 12.05C (Doc. 13, pp. 23-28). 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 (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). 

																																																							 17The Court notes that Plaintiff’s argument focuses on subsections 

A and B of Listing 12.04, apparently conceding that she does not meet 

the requirements of subsection C (Doc. 13, pp. 22-23). 

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The Court notes that although the regulations require that 

Plaintiff demonstrate she suffered “deficits in adaptive 

behavior” before she turned twenty-two, 20 C.F.R. Part 404, 

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

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. 

Plaintiff points to the WAIS Full Scale IQ score of 65, in 

the testing conducted by Psychologist Blanton, as the basis for 

this claim (Doc. 13, pp. 23-24). She also points to Blanton’s 

finding that she had “‘demonstrated deficits in adaptive 

functioning due to her mental retardation manifested prior to 

age 22’ in communication, social interpersonal skills, work, 

health safety, and functional academic skills” (id.) (quoting

Tr. 481). 

The ALJ rejected Blanton’s finding that Robinson met 

Listing 12.05C because two of her physicians at West Alabama 

Mental Health found her to be of average intelligence with no 

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psychomotor retardation (Tr. 39). The ALJ further rejected the 

mental retardation diagnosis because treatment notes from WAMH 

indicated no cognitive deficits. Finally, the ALJ rebutted 

Blanton’s assertion that Robinson had demonstrated deficits in 

adaptive functioning before she turned twenty-two in noting that 

Plaintiff had reported working as a CNA, characterized as semiskilled work (Tr. 39, 80). 

The Court finds that the ALJ’s conclusion is supported by 

substantial evidence. The Court accords no weight to Robinson’s 

suggestion that because the two doctors at WAMH were only 

psychiatrists—instead of psychologists—they were guessing at her 

intelligence level (Doc. 13, p. 24). The Court finds that the 

ALJ properly considered all of the evidence of record and 

correctly determined that Plaintiff had not demonstrated that 

she satisfied Listing 12.05C requirements.

Finally, Robinson asserts that the Appeals Council did not 

properly consider newly-submitted evidence. This claim breaks 

down to two different components: (1) The evidence included a 

diagnosis of disc herniation; and (2) the evidence was rejected 

solely on the basis of the treatment dates (Doc. 13, pp. 28-31).

The Court notes that a disability claimant can present new 

evidence at any stage of the administrative proceedings. 20 

C.F.R. §§ 404.900(b) and 416.1400(b) (2015); Ingram v. 

Commissioner of Social Security, 496 F.3d 1253, 1261 (11th Cir. 

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2007). If the evidence is first presented to the Appeals 

Council, the Council considers it only if it relates “to the 

period on or before the date of the [ALJ’s] hearing decision.” 

20 C.F.R. §§ 404.970(b) and 416.1470(b). If it is relevant to 

the period under consideration, an examination is then made as 

to whether the claimant has “establish[ed] that: (1) there is 

new, noncumulative evidence; (2) the evidence is 'material,' 

that is, relevant and probative so that there is a reasonable 

possibility that it would change the administrative result, and 

(3) there is good cause for the failure to submit the evidence 

at the administrative level." Caulder v. Bowen, 791 F.2d 872, 

877 (11th Cir. 1986). If the Appeals Council determines that 

the evidence provides no basis for changing the ALJ’s decision, 

no further explanation is required. Mitchell v. Commissioner, 

771 F.3d 780, 783-85 (11th Cir. 2014). The Court will now review 

the submitted evidence and the Appeals Council’s consideration 

of it.

Robinson first claims that the Appeals Council erred in 

reviewing specific new evidence that included a diagnosis of 

disc herniation (Doc. 13, pp. 28-30). The evidence shows that 

on May 8, 2013, approximately one month before the ALJ’s 

determination was entered, Dr. Austin W. Gleason, at the Spine 

Institute of Louisiana, examined Plaintiff who was in no acute 

distress; she complained of lumbosacral pain with some radiation 

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into the buttocks and down into her left leg to the knee and, 

sometimes, into the right knee (Tr. 538-39). Robinson had 

decreased ROM—about thirty-five percent of normal with slight 

discomfort with extreme flexion and extension; lateral flexion 

was normal. She had no neurological deficits. Gleason reviewed 

an MRI of the lumbar spine, performed on January 15, 2013 (Tr. 

521), and noted mild degenerative changes throughout. “At L5-

S1, there [was] a fairly large extruded fragment of disk 

primarily on the left side but some degree on the right. There 

also [was] a degenerative disk at L3-L4 and also L5-S1” (Tr. 

538). The Doctor’s impression was herniated and extruded disk 

fragment at L5-S1 and degenerative disk at L3-L4. Gleason 

indicated that surgery could probably be avoided; he prescribed

Lortab and a Medrol Dosepak.

The Court finds substantial support for the Appeals 

Council’s decision that this evidence provided no basis for 

changing the ALJ’s decision (see Tr. 2). The MRI was in the 

record before the ALJ. Though Dr. Gleason provided a new 

diagnosis, he indicated surgery was unnecessary as of yet, so he 

prescribed medications. The ALJ had already found Robinson to 

have the severe impairment of degenerative disc disease of the 

lumbar spine and accompanying back pain. The new diagnosis, 

with no accompanying new treatment regimen, provided no reason 

to refer the action back to the ALJ as no new limitations were 

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suggested in the evidence.

Plaintiff also asserts that the Appeals Council erred in 

rejecting newly-submitted evidence solely on the basis of the 

treatment dates (Doc. 13, pp. 30-31). The Appeals Council’s 

rejection stated as follows:

We also looked at the medical records 

from West Alabama Mental Health Center from 

June 19, 2013 to May 25, 2014, from Choctaw 

General Hospital from October 26, 2013 to 

March 29, 2014, from Dr. David Malloy from 

January 1, 2014 and from the Spine Institute 

of Louisiana from October 16, 2013 to 

November 4, 2013. The administrative Law 

Judge decided your case through June 3, 

2013. This new information is about a later 

time. Therefore, it does not affect the 

decision about whether you were disabled 

beginning on or before June 3, 2013.

(Tr. 2). The Appeals Council indicates that the evidence 

appears in Exhibits 20F through 24F (Tr. 5; cf. Tr. 529-44). 

Plaintiff admits that “the records are dated after the date 

of the ALJ’s decision” (Doc. 13, p. 31). This would normally be 

the end of this enquiry because, as noted earlier, the Council 

considers new evidence only if it relates “to the period on or

before the date of the [ALJ’s] hearing decision.” 20 C.F.R. 

§§ 404.970(b) and 416.1470(b). 

However, the Court has reviewed the evidence in question 

and notes that it all appears to pre-date the ALJ’s decision 

(Tr. 2; cf. Tr. Index 3, 529-44). As such, the Appeals 

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Council’s rejection of it as untimely is error.

Nevertheless, the Court has reviewed the evidence and finds 

that it is not new, noncumulative evidence. More to the point, 

most of it already appears in the record before the ALJ. The 

Court also finds that the evidence is not material. More

specifically, the Court does not find a reasonable possibility 

that it would change the administrative result. For these

reasons, the Court finds that although the Appeals Council 

committed error in rejecting the evidence as untimely, it is 

only harmless error. 

Robinson has raised five 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 be entered by 

separate Order.

DONE this 5th day of November, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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