IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

NANCY ROBINSON, )

Plaintiff, )

)

v. ) Civil Action No. 14-00084-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

Social Security Claimant/Plaintiff Nancy Robinson (“Robinson”) has brought 

this action under 42 U.S.C. § 1383(c)(3) seeking judicial review of a final decision of 

the Defendant Commissioner of Social Security (“the Commissioner”) denying her 

application for supplemental security income (“SSI”) under Title XVI of the Social 

Security Act, 42 U.S.C. §§ 1381-1383c.1 (See Doc. 1). By the consent of the parties

(see Doc. 22), the Court has designated the undersigned United States Magistrate 

Judge to conduct all proceedings and order the entry of judgment in this civil action 

under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.2 (See Doc. 23).

The parties have waived oral argument (see Docs. 21, 24), and this action is 

 1 Robinson alleges (see Doc. 1 at 1, ¶ 2), and the Commissioner admits (see Doc. 13 at 1, ¶ 1), 

that she resides in this judicial district. Thus, venue is proper in this Court. See 42 U.S.C. 

§§ 1383(c)(3) (“The final determination of the Commissioner of Social Security after a 

hearing [on a claim for supplemental security income] shall be subject to judicial review as 

provided in section 405(g) of this title to the same extent as the Commissioner's final 

determinations under section 405 of this title.”) and 405(g) (“Such action shall be brought in 

the district court of the United States for the judicial district in which the plaintiff resides, 

or has his principal place of business...”).

2 Thus, an appeal taken from the judgment entered in this action may be made directly to 

the Eleventh Circuit Court of Appeals.

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ripe for adjudication. Upon consideration of the parties’ briefs (Docs. 17, 18, 19) and

the relevant portions of the administrative record (Doc. 14) (hereinafter cited as “(R. 

[page number(s)])”), the Court finds that the Commissioner’s decision is due to be

AFFIRMED.

I. Procedural Background

On March 30, 2007, Robinson protectively filed with the Social Security 

Administration (“SSA”) an application SSI, alleging disability beginning March 30, 

2007. 3 After her application was initially denied on July 13, 2007, Robinson

requested a hearing on her application. A hearing was held before an 

Administrative Law Judge (“ALJ”) on March 25, 2010. Subsequent to that hearing, 

additional evidence was submitted, and a supplemental hearing was held on July 1, 

2010, in Montgomery, Alabama. (See R. 51).

On September 10, 2010, the ALJ issued an unfavorable decision on 

Robinson’s application. (R. 48-65). Robinson requested review of the ALJ’s decision 

by the Appeals Council for the SSA’s Office of Disability Adjudication and Review. 

On January 14, 2014, the Appeals Council issued its decision denying Robinson’s 

request for review. (R. 1-5). 

Robinson timely filed this action under § 1383(c)(3) for judicial review of the 

Commissioner’s final decision on February 25, 2014. (See Doc. 1); Ingram v. 

 3 “SSI is a general public assistance measure providing an additional resource to the aged, 

blind, and disabled to assure that their income does not fall below the poverty line. 

Eligibility for SSI is based upon proof of indigence and disability.” Sanders v. Astrue, Civil 

Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012) (citing 42 U.S.C. 

1382(a), 1382c(a)(3)(A)-(C)). “For SSI claims, a claimant becomes eligible in the first month 

where she is both disabled and has an SSI application on file.” Moore v. Barnhart, 405 F.3d 

1208, 1211 (11th Cir. 2005) (per curiam) (citing 20 C.F.R. § 416.202–03 (2005)).

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Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law 

of this Circuit is that a court may review, under sentence four of section 405(g), a 

denial of review by the Appeals Council.”); 42 U.S.C. § 405(g) (“Any individual, after 

any final decision of the Commissioner of Social Security made after a hearing to 

which he was a party, irrespective of the amount in controversy, may obtain a 

review of such decision by a civil action commenced within sixty days after the 

mailing to him of notice of such decision or within such further time as the 

Commissioner of Social Security may allow.”).4

II. Standard of Review

The Social Security Regulations outline a five-step, sequential 

evaluation process used to determine whether a claimant is disabled: 

(1) whether the claimant is currently engaged in substantial gainful 

activity; (2) whether the claimant has a severe impairment or 

combination of impairments; (3) whether the impairment meets or 

equals the severity of the specified impairments in the Listing of 

Impairments; (4) based on a residual functional capacity (“RFC”) 

assessment, whether the claimant can perform any of his or her past 

relevant work despite the impairment; and (5) whether there are 

significant numbers of jobs in the national economy that the claimant 

can perform given the claimant's RFC, age, education, and work 

experience.

Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citing 20 

C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Phillips v. Barnhart, 357 F.3d 

1232, 1237-39 (11th Cir. 2004)).5 This five-step evaluation process “is used to 

 4 “The final determination of the Commissioner of Social Security after a hearing [for SSI 

benefits] shall be subject to judicial review as provided in section 405(g) of this title to the 

same extent as the Commissioner's final determinations under section 405 of this title.” 42

U.S.C. § 1383(c)(3).

5 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual 

steps of this five-step sequential evaluation.

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determine disability for both SSI and DIB [Disability Insurance Benefit6] claims.” 

Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (citing 

McDaniel v. Bowen, 800 F.2d 1026, 1030–31 (11th Cir.1986); 20 C.F.R. § 416.912 

(2005) (five-step determination for SSI); 20 C.F.R. § 404.1520 (2005) (five-step 

determination for DIB)). 

“These regulations place a very heavy burden on the claimant to demonstrate 

both a qualifying disability and an inability to perform past relevant work.” Moore 

v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (citing Spencer v. 

Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). “In determining whether the 

claimant has satisfied this initial burden, the examiner must consider four factors: 

(1) objective medical facts or clinical findings; (2) the diagnoses of examining 

physicians; (3) evidence of pain; and (4) the claimant's age, education, and work 

history.” Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986) (per curiam) (citing 

Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per curiam)). “These 

factors must be considered both singly and in combination. Presence or absence of a 

single factor is not, in itself, conclusive.” Bloodsworth v. Heckler, 703 F.2d 1233, 

1240 (11th Cir. 1983) (citations omitted).

If, in Steps One through Four of the five-step evaluation, a plaintiff proves 

that he or she has a qualifying disability and cannot do his or her past relevant 

work, it then becomes the Commissioner’s burden, at Step Five, to prove that the 

plaintiff is capable—given his or her age, education, and work history—of engaging 

in another kind of substantial gainful employment that exists in the national 

 6 Title II of the Social Security Act, 42 U.S.C. §§ 401-433.

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economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 

764 F.2d 834, 836 (11th Cir. 1985). Finally, but importantly, although “the 

[plaintiff] bears the burden of demonstrating the inability to return to [his or] her 

past relevant work, the Commissioner of Social Security has an obligation to 

develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) 

(citations omitted).

“In Social Security appeals, [the Court] must determine whether the 

Commissioner's decision is ‘ “supported by substantial evidence and based on 

proper legal standards. Substantial evidence is more than a scintilla and is such 

relevant evidence as a reasonable person would accept as adequate to support a 

conclusion.” ’ ” Winschel, 631 F.3d at 1178 (quoting Crawford v. Comm'r of Soc. 

Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) 

(quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). “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). 

However, the Court “ ‘may not decide the facts anew, reweigh the evidence, or 

substitute our judgment for that of the [Commissioner].’ ” Winschel, 631 F.3d at 

1178 (quoting Phillips, 357 F.3d at 1240 n.8 (alteration in original) (quoting 

Bloodsworth, 703 F.2d at 1239)). Even if the evidence preponderates against the 

Commissioner’s findings, [a court] must affirm if the decision reached is supported 

by substantial evidence.” Davison v. Astrue, 370 F. App’x 995, 996 (11th Cir. 2010) 

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(per curiam) (unpublished) 7 (citing Crawford, 363 F.3d at 1158-59) (emphasis 

added). “Yet, within this narrowly circumscribed role, [courts] do not act as 

automatons. [The court] must scrutinize the record as a whole to determine if the 

decision reached is reasonable and supported by substantial evidence[.]” 

Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted).

Moreover, “[t]here is no presumption...that the Commissioner followed the 

appropriate legal standards in deciding a claim for benefits or that the legal 

conclusions reached were valid. Instead, [the court] conduct[s] ‘an exacting 

examination’ of these factors.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) 

(per curiam) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)) 

(internal citation omitted). See also Moore, 405 F.3d at 1211 (“In Social Security 

appeals, we review de novo the legal principles upon which the Commissioner's 

decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, we 

review the resulting decision only to determine whether it is supported by 

substantial evidence. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158–59 

(11th Cir. 2004)).

When, as here, “no new evidence is presented to the Appeals Council and it 

denies review, then the administrative law judge's decision is necessarily reviewed 

as the final decision of the Commissioner...” Ingram, 496 F.3d at 1262.

 7 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also

Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007) 

(“Unpublished opinions are not controlling authority and are persuasive only insofar as 

their legal analysis warrants.”).

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III. Claims on Appeal

Claim 1 – “The ALJ abused his discretion when he substituted his own 

uninformed medical evaluation for the opinions of Dr. Huey Kidd and 

Dr. Donald Blanton, and the ALJ failed to conduct a full and fair 

hearing.”

Claim 2 - “The ALJ relied on evidence that was inconsistent with the regulatory 

definition of unskilled work.”

Claim 3 - “The ALJ’s residual functional capacity assessment is not supported by

substantial evidence, as it did not account for Ms. Robinson’s diabetes.”

(Doc. 18 at 2).8

IV. Analysis

A. Claim 1

At Step Four,

the ALJ must assess: (1) the claimant's residual functional capacity 

(“RFC”); and (2) the claimant's ability to return to her past relevant 

work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the 

regulations define RFC as that which an individual is still able to do 

despite the limitations caused by his or her impairments. 20 C.F.R. § 

404.1545(a). Moreover, the ALJ will “assess and make a finding about 

[the claimant's] residual functional capacity based on all the relevant 

medical and other evidence” in the case. 20 C.F.R. § 404.1520(e). 

Furthermore, the RFC determination is used both to determine 

whether the claimant: (1) can return to her past relevant work under 

the fourth step; and (2) can adjust to other work under the fifth 

step...20 C.F.R. § 404.1520(e).

If the claimant can return to her past relevant work, the ALJ will 

conclude that the claimant is not disabled. 20 C.F.R. § 

404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past 

 8 Because Claim 2 asserts error at Step Five, the Court will address it last, as Claims 1 and 

3 assert errors in previous steps of the ALJ’s analysis.

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relevant work, the ALJ moves on to step five.

In determining whether [a claimant] can return to her past relevant 

work, the ALJ must determine the claimant's RFC using all relevant 

medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That 

is, the ALJ must determine if the claimant is limited to a particular 

work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the 

claimant's RFC and determines that the claimant cannot return to her 

prior relevant work, the ALJ moves on to the fifth, and final, step.

Phillips, 357 F.3d at 1238-39 (footnote omitted).

“ ‘Medical opinions are statements from physicians and psychologists or other 

acceptable medical sources that reflect judgments about the nature and severity of 

[the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and 

prognosis, what [the claimant] can still do despite impairment(s), and [the 

claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79 

(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). ALJs “must always carefully 

consider medical source opinions about any issue...” Social Security Ruling (SSR) 

96-5P (S.S.A. July 2, 1996).9

“In assessing medical opinions, the ALJ must consider a number of factors in 

determining how much weight to give to each medical opinion, including (1) 

whether the physician has examined the claimant; (2) the length, nature, and 

extent of a treating physician's relationship with the claimant; (3) the medical 

evidence and explanation supporting the physician's opinion; (4) how consistent the 

 9 “ ‘Social Security Rulings are agency rulings published under the authority of the 

Commissioner of Social Security and are binding on all components of the Administration.’ 

Sullivan v. Zebley, 493 U.S. 521, 531 n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed. 2d 967 (1990) 

(internal quotations omitted). Although SSA rulings are not binding on this Court, we 

accord the rulings deference. See Fair v. Shalala, 37 F.3d 1466, 1468–69 (11th Cir. 1994).” 

De Olazabal v. Soc. Sec. Admin., Com'r, 579 F. App’x 827, 832 (11th Cir. 2014) (per curiam) 

(unpublished).

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physician's opinion is with the record as a whole; and (5) the physician's 

specialization. These factors apply to both examining and non-examining 

physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir. 

Sept. 30, 2014) (per curiam) (unpublished) (internal citations and quotation marks 

omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)). “[T]he ALJ must 

state with particularity the weight given to different medical opinions and the 

reasons therefor.” Winschel, 631 F.3d at 1179 (citing Sharfarz v. Bowen, 825 F.2d 

278, 279 (11th Cir. 1987) (per curiam)). However, the ALJ “may reject the opinion 

of any physician when the evidence supports a contrary conclusion.” Bloodsworth, 

703 F.2d at 1240. Accord, e.g., Anderson v. Comm'r of Soc. Sec., 427 F. App'x 761, 

763 (11th Cir. 2011) (per curiam) (unpublished).

Robinson argues that the ALJ erred in rejecting the medical opinions of Dr. 

Huey Kidd (“Dr. Kidd”), who administered Robinson “a physical evaluation...on 

May 27, 2009[,]” and was considered a “consultative examiner,” and Dr. Donald 

Blanton (“Dr. Blanton”), who, at the request of Robinson’s attorney performed a 

mental examination of Robinson on September 9, 2009. (R. 58, 62).10

1. Dr. Kidd

Per the ALJ’s opinion when determining Robinson’s RFC at Step Four, Dr. 

Kidd’s “[p]hysical evaluation of [Robinson] was generally unremarkable except she 

was unable to heel walk due to pain in her heels and her ability to squat was 

 10 Robinson has not argued that the ALJ improperly rejected the opinion of a treating 

physician. See Winschel, 631 F.3d at 1179 (“Absent good cause, an ALJ is to give the 

medical opinions of treating physicians substantial or considerable weight.” (quotation 

marks omitted)).

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somewhat limited because of reported limitation. Dr. Kidd’s impression included 

foot pain, hypertension, and diabetes.” (R. 58). The ALJ had previously found that 

Robinson’s “bilateral foot pain of uncertain etiology” constituted a severe 

impairment but that her hypertension and diabetes were “non-severe” impairments,

as medical evidence had indicated both of these impairments were “well controlled.” 

(R. 53, 58).

In addition, Dr. Kidd “completed a Medical Source Statement of Ability to do 

Work-Related Activities (Physical)[,]” in which he

opined that the claimant could frequently lift 20 pounds, frequently 

carry 10 pounds, and occasionally carry 20 pounds; she is unable to sit, 

but she can stand for 5 minutes at one time and 30 minutes in an 8-

hour workday and walk 30 minutes in an 8-hour workday; she can 

continuously reach, handle, finger, feel, and push/pull bilaterally; she 

can continuously use her feet for operation of foot controls bilaterally; 

she can frequently balance and stoop, occasionally climb stairs and 

ramps, kneel and crouch, and never climb ladders or scaffolds and 

crawl; and; she can tolerate continuous exposure to extreme heat and 

vibrations, frequent exposure to humidity and wetness, pulmonary 

irritants, and extreme cold, occasional exposure to moving mechanical 

parts, and no exposure to unprotected heights or operating a motor 

vehicle.

(R. 58 (citing “Exhibits 11F & 26F” [R. 571-79, 671-88])).

The ALJ found that Dr. Kidd’s medical opinion was “not entitled to 

significant weight because it is internally inconsistent[,]” explaining: “Specifically, 

his opinion is inconsistent concerning the limitations he gave for lifting and 

carrying, and concerning the limitations he gave for sitting, standing, and walking 

because there is no explanation in the diagnostic findings as to why the claimant 

can frequently stoop but never sit.” (R. 63). The ALJ further discredited Dr. Kidd’s 

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opinion by finding that “the subjective complaints of foot pain reported by the 

claimant at the evaluation are inconsistent with the claimant’s longitudinal 

treatment history and the findings of her orthopedic evaluation in Exhibit 30F [R. 

700-15].” (Id.).

While Robinson “does not believe Dr. Kidd’s opinion is inconsistent with the 

record as a whole,” she initially argues that, if “the ALJ indicated he felt there was 

an inconsistency, he had a duty to recontact Dr. Kidd, but made no effort at all, 

despite 20 CFR § 404.1520b.” (Doc. 18 at 4). The ALJ cannot be faulted for failing 

to heed this regulation, however, as § 404.1520b and its SSI counterpart, 20 C.F.R. 

§ 416.920b,11 did not take effect until March 26, 2012, after the ALJ had already 

issued his determination. See Gray v. Astrue, No. 2:10-CV-507, 2012 WL 1521259, 

at *3 n.1 (E.D. Pa. May 1, 2012) (“The SSA eliminated § 404.1512(e) effective March 

26, 2012, thus ‘modifying the requirement to recontact [a claimant's] medical 

source(s),’ ostensibly to give ‘adjudicators more flexibility in determining how best 

to obtain this information.’ See generally How We Collect and Consider Evidence of 

Disability, 77 Fed. Reg. 10,651 (Feb. 23, 2012). 20 C.F.R. § 416.920b explains the 

new protocol for recontacting medical sources.”). 

Even if § 416.920b had applied, however, the Commissioner correctly notes 

that the regulation “does not require an ALJ to recontact a medical source 

whenever the source’s opinion contains inconsistencies.” (Doc. 19 at 6). Instead, the 

regulation states: “If any of the evidence in your case record, including any medical 

 11 As the Commissioner correctly notes (see Doc. 19 at 5 n.4), because this appeal involves 

only a claim for SSI, § 404.1520b is inapplicable.

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opinion(s), is inconsistent, we will weigh the relevant evidence and see whether we 

can determine whether you are disabled based on the evidence we have.” 20 C.F.R. 

§ 416.920b(b). Thus, a mere determination that a medical opinion is inconsistent

does not require an ALJ to recontact the source. An ALJ, among other courses of 

action, “may recontact [the claimant’s] treating physician, psychologist, or other 

medical source” if “the evidence is consistent but [the ALJ] ha[s] insufficient 

evidence to determine whether [the claimant is] disabled, or if after weighing the 

evidence [the ALJ determine[s he] cannot reach a conclusion about whether [the 

claimant is] disabled Id. § 416.920b(c)(1) (emphasis added). Even then, the 

regulation gives ALJs discretion in “determin[ing] the best way to resolve [an] 

inconsistency or insufficiency[,]...depend[ing] on the nature of the inconsistency or 

insufficiency.” Id. § 416.920b(c).

The version of 20 C.F.R. § 416.912 effective at the time of Robinson’s 

hearings and the ALJ’s issuance of his unfavorable decision provided: “When the 

evidence we receive from your treating physician or psychologist or other medical 

source is inadequate for us to determine whether you are disabled, we will need 

additional information to reach a determination or a decision. To obtain the 

information...[w]e will first recontact your treating physician or psychologist or 

other medical source to determine whether the additional information we need is 

readily available. We will seek additional evidence or clarification from your 

medical source when the report from your medical source contains a conflict or 

ambiguity that must be resolved...” 20 C.F.R. § 416.912(e)(1) (effective August 1, 

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2006 to November 11, 2010). See also Couch v. Astrue, 267 F. App'x 853, 855 (11th 

Cir. Feb. 29, 2008) (per curiam) (unpublished) (“Medical sources should be 

recontacted when the evidence received from that source is inadequate to determine 

whether the claimant is disabled.” (citing 20 C.F.R. §§ 404.1512(e) and 416.912(e)); 

Gray, 2012 WL 1521259, at *3 n.1 (“All the relevant events in this matter took place 

under the ‘old’ regulations cited by the SSA, and our analysis proceeds 

accordingly.”). The duty to recontact under the old version of § 416.912(e) did not 

arise if, overall, substantial record evidence supports the ALJ’s determination that 

a claimant is not disabled. Cf. Couch, 267 F. App’x at 855-56 (“Couch next argues 

that the ALJ was required...to recontact Dr. Figueroa after deciding that his 

opinion was without record support, and the ALJ's failure to seek clarification of the 

reasons underlying Dr. Figueroa's disability opinion requires reversal... The record 

reflects that the duty to recontact did not arise here. First, substantial evidence, 

including the evaluations of two other consulting psychologists, Couch's reported 

daily activities, and Dr. Figueroa's own treatment notes, supported the ALJ's 

determination that Couch was not disabled. Additionally, it appears that the ALJ 

was in possession of all of Dr. Figueroa's medical records, and the information 

contained therein was adequate to enable the ALJ to determine that Couch was not 

disabled. Therefore, there was no need for additional information or clarification.”).

Robinson further argues that “there are no other medical opinions in the 

record that the ALJ determined should be given substantial weight” and that, “[b]y 

simply rejecting [Dr. Kidd’s] medical opinion, with no other existing medical 

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opinion, the ALJ improperly p[laced [sic] himself in the shoes of the physician.” 

(Doc. 18 at 13 (citing Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir. 1992) 

(Johnson, J., concurring) (“Although Social Security disability benefits must be 

reserved only for those who qualify to receive them, an ALJ may not arrogate the 

power to act as both judge and physician. The ALJ in this case clearly exceeded his 

legal authority by allowing his personal views regarding the non-physical source of 

Marbury's seizure disorder to interfere with his responsibilities to administer fairly 

the Social Security disability programs. On remand, let us hope that the ALJ 

refrains from playing doctor and instead satisfies himself with merely serving as a 

judge.”)). 12

The Court finds that the ALJ’s decision not to credit Dr. Kidd’s opinion was 

rational because substantial record evidence supported a contrary conclusion.13 At 

her first SSA hearing, Robinson testified to experiencing foot pain, rating the pain 

 12 Robinson fails to note in her brief that the proposition for which she cites Marbury is 

not found in the majority opinion but is instead from the specially concurring opinion of 

a single panel member. While certainly forceful and persuasive, the specially 

concurring opinion is not binding precedent, and Robinson’s failure to identify it as such 

could be deemed misleading (though the undersigned will assume mere negligence in 

this instance). Cf. Langley v. Astrue, 777 F. Supp. 2d 1250, 1257-58 (N.D. Ala. 2011)

(finding that the plaintiff’s attorney made an “obvious attempt to mislead the court” by 

characterizing a quotation from a former Fifth Circuit opinion as binding precedent, 

where the quotation was merely descriptive of another circuit’s holding and, when put 

in context with the surrounding language in the opinion, did not support the 

proposition for which the plaintiff cited it); Rohm & Haas Co. v. Utica Mut. Ins. Co., 

Civil Action No. 07-584, 2008 WL 2517176, at *2 n.4 (E.D. Pa. June 23, 2008) (“While 

both parties cited Gallatin Fuels in their briefs, neither party disclosed that the case is 

non-precedential. In fact, Rohm and Haas stated that ‘Gallatin Fuels controls this 

case.’...Under the circumstances, while the case is informative, to say that it is 

‘controlling’ is at least an intemperate overstatement.”).

13 The Court expresses no opinion on the ALJ’s alternative rejection of Dr. Kidd’s opinion as 

internally inconsistent.

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at “10/10” but at “8 to 9/10” after she started wearing a brace. (R. 60). At her 

follow-up hearing, Robinson testified that she “continues to wear the brace on her 

left foot because without the brace, her foot ‘balls up’ and she cannot walk” and that 

she “walks with a limp because of her foot problem.” (Id.). Robinson also testified 

that she “takes Tramadol three times daily for pain,” which “causes her to be 

‘spaced out.’ ” (Id.).

The ALJ found Robinson’s “statements concerning the intensity, persistence 

and limiting effects of” her foot pain to be “not credible to the extent they are 

inconsistent with” the ALJ’s RFC assessment. (Id.). The ALJ noted that, despite 

Robinson’s testimony of foot pain at her SSA hearings, she, “on multiple occasions, 

denied joint pain or swelling” and “failed to even mention foot pain on numerous 

occasions...” (R. 60-61 (citing Exhibits 5F [R. 534-46] & 30F [R. 700-15])). Noting 

that “symptoms alone do not establish disability unless medical signs and 

laboratory findings show there is a medically determinable impairment that could 

reasonably be expected to produce the symptoms alleged[,]” the ALJ further found:

The record reflects excessive symptomology and not enough pathology; 

not only has [Robinson] only intermittently complained of her 

symptoms, nerve conduction studies were negative and x-rays showed 

no major arthritic changes. Additionally, her station and gait were 

also noted as normal (Exhibits 26F [Dr. Kidd’s report] & 30F [Dr. 

Suddath’s report]), she was able to stand on the leg independently, and 

she was able to heel and toe walk (Exhibit 30F). Yet, at the 

consultative examination, the claimant stated she was unable to heel 

walk due to reported pain (Exhibit 30F). It is also noted that the 

claimant also reported that she could sit in a chair “as long as I like” 

(Exhibit 30F), but yet she testified that she is limited to sitting for 10 

minutes. However, at numerous times, the claimant has also reported 

that she sits on the sofa most of the day, watching television. 

Although the inconsistent information throughout the record may not 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 15 of 31
16

be the result of a conscious intention to mislead, nevertheless the 

inconsistencies suggest that the information provided by the claimant 

generally may not be entirely reliable.

(R. 62). 

Dr. Kidd’s medical evaluation encapsulates the ALJ’s complaint of “excessive 

symptomology and not enough pathology.” Dr. Kidd cited no medical signs or 

laboratory tests to support his assessment (with regard to Robinson’s diabetes and 

hypertension, as well as her foot pain), and his opinions appear to be based solely on 

Robinson’s subjective complaints regarding her symptoms. (R. 572). See 20 C.F.R. 

§ 416.927(c)(3) (“The more a medical source presents relevant evidence to support 

an opinion, particularly medical signs and laboratory findings, the more weight we 

will give that opinion. The better an explanation a source provides for an opinion, 

the more weight we will give that opinion.”). See Markuske v. Comm'r of Soc. Sec., 

572 F. App'x 762, 766 n.3 (11th Cir. July 17, 2014) (per curiam) (unpublished) (“ ‘A 

treating physician's report may be discounted when it is not accompanied by 

objective medical evidence or is wholly conclusory.’ Crawford v. Comm'r of Soc. Sec.,

363 F.3d 1155, 1159 (11th Cir. 2004) (quotation marks omitted). Thus, an ALJ may 

discount a treating physician's opinion where it ‘appears to be based primarily on

[the claimant's] subjective complaints of pain.’ Id.”); Costigan v. Comm'r, Soc. Sec. 

Admin., No. 14-11950, 2015 WL 795089, at *5 (11th Cir. Feb. 26, 2015) (per curiam) 

(unpublished) (“The ALJ articulated good cause for rejecting [treating physician 

]Dr. Kemp's opinion that Costigan was disabled to the point that she could not 

work[ because, inter alia] his findings were based on Costigan's subjective reports 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 16 of 31
17

and he had no objective medical records on which to base his opinion[, and] his 

opinion was not well-supported by medically acceptable clinical and laboratory 

diagnostic techniques...Substantial evidence supports the ALJ's stated reasons, 

first, because the physician's opinion did not appear to be based on any objective 

medical evidence, such as medically acceptable clinical diagnostic techniques or 

laboratory findings, and, second, no such evidence was part of the record before the 

ALJ. Instead, he provided only conclusory statements that certain activities would 

aggravate Costigan's chronic neck and low back pain or based his findings on 

Costigan's self-reports of symptoms.” (citations omitted)). Moreover, while Dr. Kidd 

observed that Robinson was “unable to heel walk due to pain in her heels,” he did 

observe that she was “able to toe walk” and “ambulates without difficulty, without 

any limp.” (R. 573).

The ALJ also discredited Dr. Kidd’s opinion because he found that Robinson’s 

subjective complaints of foot pain to Dr. Kidd were inconsistent with Robinson’s 

longitudinal treatment history and the findings of another orthopedic evaluation. 

20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent an opinion is with the 

record as a whole, the more weight we will give to that opinion.”). This other 

orthopedic evaluation was found at administrative record “Exhibit 30F” (R. 700-15),

which, per the ALJ, was a January 21, 2010 “evaluation of left leg pain” performed 

by Dr. William Suddath of University Orthopaedic Clinic & Spine Center, to whom 

Robinson was referred after she reported “complaints of left leg/foot pain” while 

receiving treatment at Hale County Hospital. (R. 57). Dr. Suddath’s evaluation 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 17 of 31
18

occurred approximately eight months after Dr. Kidd’s. The ALJ summarized Dr. 

Suddath’s findings as follows:

X-rays of the left knee were performed and showed lateral position of 

the patella, no major arthritic changes, and no femoral shaft 

abnormalities. Dr. Suddath diagnosed left patellofemoral syndrome 

with radial tibial band tightness. He provided medication 

management and referred the claimant to physical therapy. However, 

on follow-up the claimant reported that she attended only one therapy 

visit because she injured her other knee and did not feel that she 

should do therapy on her left knee. It was noted at this visit, that the 

claimant’s gait and station were normal and she had no instability. 

She was advised to return after completing physical therapy, but no 

additional visits are noted in the record.

(R. 57). 

Unlike her evaluation with Dr. Kidd, at Dr. Suddath’s evaluation Robinson 

did not report foot pain, instead describing the pain “as being above the knee and in 

the lateral aspect of the knee.” (R. 707). Dr. Suddath accordingly performed x-rays 

of Robinson’s left knee but not her foot. (R. 57, 707). Dr. Suddath did not diagnose 

Robinson for foot pain and observed that Robinson could stand independently on 

her left leg, that her “gait and station were normal” with “no instability[,]” and that 

she was “able to heel and toe walk.” (R. 707).

In sum, substantial evidence supports the ALJ’s decision to reject Dr. Kidd’s 

medical opinions because those opinions were based only on Robinson’s subjective 

complaints, which the ALJ found not credible regarding their intensity; because 

those opinions were not supported by any citation to medical signs or lab findings; 

and because other record evidence was contrary to his conclusions. Thus, the ALJ 

did not err in assigning little weight to Dr. Kidd’s opinions. 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 18 of 31
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2. Dr. Blanton

Robinson also argues that the ALJ erred in giving less weight to Dr. 

Blanton’s opinion than that of another examining psychologist, Dr. Stutts, “who did 

not review school records and performed no IQ tests.” (Doc. 18 at 4-5). She further

argues that, “[b]ecause the ALJ cherry picked facts from the record to support his 

finding that Ms. Robinson did not meet or equal Listing 12.05(c), and because the 

record is silent on those facts that would support a finding that she does meet or 

equal Listing 12.05(c), his decision is not supported by substantial evidence and 

should be reversed.” (Id. at 5).

To establish a disability under section 12.05(C), a claimant must 

present evidence of a valid verbal, performance, or full-scale I.Q. score 

of between 60 and 70 inclusive, and of a physical or other mental 

impairment imposing additional and significant work-related 

limitation of function. See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 

12.05(C) (1992)[14]. In addition, the general introduction on “mental 

retardation and autism” provides that a section 12.05(C) claimant 

must demonstrate that the retardation is a lifelong condition which 

manifested itself before age twenty-two. See 20 C.F.R. Part 404, 

Subpart P, Appendix 1, § 12.05 (1992).

Generally, a claimant meets the criteria for presumptive disability 

under section 12.05(C) when the claimant presents a valid I.Q. score of 

60 to 70 inclusive, and evidence of an additional mental or physical 

impairment that has more than “minimal effect” on the claimant's 

ability to perform basic work activities. See Edwards by Edwards v. 

Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985)...[H]owever,...a valid 

I.Q. score need not be conclusive of mental retardation where the I.Q. 

score is inconsistent with other evidence in the record on the claimant's 

daily activities and behavior. Popp v. Heckler, 779 F.2d 1497, 1499 

(11th Cir. 1986) (rejecting a claim of section 12.05(C) mental 

retardation where the claimant's I.Q. score of 69 was inconsistent with 

evidence that he had a two-year college associate's degree, was 

enrolled in a third year of college as a history major, and had worked 

 14 The ALJ’s September 10, 2010 opinion applied this standard in evaluating § 12.05(C) 

criteria (see R. 55).

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 19 of 31
20

in various technical jobs such as an administrative clerk, statistical 

clerk, and an algebra teacher). Although the ALJ is allowed some 

leeway to evaluate other evidence when determining the validity of an 

I.Q. score, an ALJ may not consider a claimant's age, education, and 

work experience after the ALJ accepts the I.Q. score as valid and finds 

that the claimant meets or equals the criteria of a listed impairment. 

See Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984) 

(“consideration of the fact that [claimant] could return to her past work 

is not a relevant inquiry once she has met the Listing of Impairments 

in Appendix 1”); 20 C.F.R. § 404.1520(d).

Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). Accord Perkins v. Comm'r, 

Soc. Sec. Admin., 553 F. App'x 870, 872-73 (11th Cir. Jan. 22, 2014) (per curiam) 

(unpublished).

Dr. Blanton administered an IQ test and reported a full-scale IQ score of 60 

for Robinson, placing her “in the mild range of mental retardation at the time of 

testing” – September 9, 2009. (R. 58). Dr. Blanton also administered a test for 

depression that placed Robinson in the “severely depressed range.” (R. 59). Dr. 

Blanton concluded that Robinson was “functionally illiterate” and diagnosed “major 

depression worsened by chronic pain and chronic illness, mild mental retardation, 

and a global assessment of functioning” representing “[s]erious symptoms (e.g., 

suicidal ideation, severe obsessional rituals, frequent shoplifting) OR serious 

impairment in social, occupational, or school functioning (e.g., no friends, unable to 

keep job).” (Id.). Dr. Blanton also opined:

The claimant has marked limitation that seriously interfere [sic] with 

her ability to perform work-related activities on a day-to-day basis in a 

regular work setting the following areas: understand and remember 

simple instructions; carry out simple instructions; remember detailed 

or complex instructions; remember detailed or complex instructions; 

use judgment in detailed or complex work-related instructions; and, 

maintain attention, concentration, and pace for at least two hours. Dr. 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 20 of 31
21

Blanton also opined that the claimant’s mental retardation has been a 

lifelong condition and her depression has been present at this level for 

at least one year. It was also his opinion that the claimant’s condition 

is likely to deteriorate if she is placed under stress, especially that of a 

job.

(R. 58 (internal citation omitted)).

In determining that Robinson had not satisfied the criteria under § 12.05(C), 

the ALJ acknowledged that Dr. Blanton’s report would appear “at first glance” to 

satisfy the criteria. (See R. 55). However, the ALJ found that Dr. Blanton’s report 

was “entitled to no more than substantial weight[,]” that “the other documentary 

evidence of record does not demonstrate or support an onset of [an] impairment 

before age 22 as also required by listing 12.05[,]” and that “the documentary 

evidence of record, including the claimant’s personal and work history, does not 

demonstrate deficits in adaptive functioning.” (Id.).

Robinson claims that the ALJ rejected Dr. Blanton’s opinion “mainly because 

it was inconsistent with the opinion of Dr. Stutts, who did not review school records 

and performed no IQ tests.” (Doc. 18 at 5). Dr. Stutts, another examining mental 

health professional, found Robinson’s mental status and cognitive functioning to be 

“generally unremarkable,” estimated her IQ to be “low average to borderline,” 

opined that her abilities to understand, remember, and carry out instructions and to 

respond appropriately to others was only “moderately impaired,” and found that her 

anxiety symptoms were “in remission.” (R. 58, 62). 

As the Commissioner correctly notes, however, the ALJ noted that Dr. 

Blanton’s opinions were inconsistent with other record evidence as well. The ALJ 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 21 of 31
22

noted that “school reports within the record” included an IQ score of 75 at age 

seven, based on the same test performed by Dr. Blanton; and scores of 75 and 80 in 

the sixth and seventh grades, respectively, based on a different IQ test. (R. 60). 

This evidence was contrary to Dr. Blanton’s medical opinion that Robinson’s mental 

retardation was “a lifelong condition,” despite Dr. Blanton himself having reviewed 

the school record IQ scores. The ALJ also noted that record evidence reflected that 

Robinson had completed high school and received a regular diploma (though she did 

attend special education classes), that she completed the “lengthy questionnaires 

required in conjunction with [her SSI application] without any assistance, and that 

she reported on multiple occasions that she reads newspapers. (R. 60-61). This 

evidence is contrary to Dr. Blanton’s determination that Robinson is “functionally 

illiterate.” The ALJ specifically noted these inconsistencies in assigning less weight 

to Dr. Blanton’s opinion. (See R. 62 (noting that Dr. Blanton’s opinion and 

evaluation stated that Robinson “has multiple marked limitations and that her 

mental retardation has been ‘life-long,’ even though the education records he 

reviewed reported IQ’s from 75 to 80”). The ALJ also found significant “the lack of a 

mental illness treatment history” to corroborate Dr. Blanton’s opinions regarding 

the length and severity of her mental impairments, and he noted that Dr. Blanton’s 

opinion that Robinson was unable to understand and remember simple instructions 

was not consistent with record evidence indicating “her ability to remain employed 

for significant periods of time.” (R. 62). Thus, substantial record evidence supports 

the ALJ’s clearly articulated reasons to give less weight to Dr. Blanton’s opinions. 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 22 of 31
23

See Bloodsworth, 703 F.2d at 1240 (an ALJ “may reject the opinion of any physician 

when the evidence supports a contrary conclusion”). 

Substantial evidence also supports the ALJ’s determination that Robinson 

did not satisfy the criteria of § 12.05(C). While “an IQ score of 60 through 70 

establishes a rebuttable presumption that impairment due to mental retardation 

was present before age 22 because IQ scores remain fairly constant throughout 

life[,]” Perkins, 553 F. App'x at 873 (citing Hodges v. Barnhart, 276 F.3d 1265, 

1268–69 (11th Cir. 2001)), the ALJ specifically noted the school record IQ scores

that were outside of this range, thus rebutting the presumption afforded to Dr. 

Blanton’s IQ test. (R. 60). Moreover, a “diagnosis of mental retardation is 

insufficient, standing alone, to meet Listing 12.05(C)[,]” and “[a] valid IQ score does 

not have to be conclusive of mental retardation where the IQ score is inconsistent 

with other record evidence regarding the claimant's daily living activities and 

behavior.” Perkins, 553 F. App'x at 873-74 (citing Lowery, 979 F.2d at 837; 20 

C.F.R. § 416.925(d) (explaining an impairment “cannot meet the criteria of a listing 

based only on a diagnosis,” as a claimant must show a “medically determinable 

impairment[ ] that satisfies all of the criteria of the listing” (emphasis added)). 

Here, the ALJ found that “the documentary evidence of record, including 

[Robinson]’s personal and work history, does not demonstrate deficits in adaptive 

functioning.” (R. 55). 15 Specifically, the ALJ noted that Robinson “lives 

 15 “While an ALJ may not consider a claimant's work experience after accepting an IQ score 

as valid and finding that the claimant meets Listing 12.05, here the ALJ determined that 

[Robinson’s] adaptive functioning precluded h[er] from meeting Listing 12.05(C). 

Accordingly, the ALJ did not err by considering evidence of [Robinson’s] work experience 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 23 of 31
24

independently without a highly supportive living arrangement[,] is able function 

independently outside the area of her home[,]...cares for her own personal needs,” 

and has “a significant work history.” (R. 55, 63). Moreover, Robinson was noted to 

have worked as a cook, small products packer, and sewing machine operator, all 

“low-end...semiskilled” jobs. (R. 107, 137). Robinson has not argued error in any of 

these findings, which indicate that her mental impairments had no more than a 

minimal effect on her ability to perform basic work activities. See Lowery, 979 F.2d 

at 837.16 Thus, the ALJ did not err in assign less weight to Dr. Blanton’s opinions, 

 

and adaptive functioning.” Perkins, 553 F. App'x at 873 (internal citations omitted).

16 Robinson argues that, “rather than discrediting Dr. Blanton’s medical opinion and 

the inclusive IQ scores without any basis in a conflicting medical opinion, the ALJ should 

have ordered a consultative examination to quiet any doubts the ALJ held about the 

claimant’s mental disability.” (Doc. 18 at 5 (citing Long v. Colvin, No. 7:12-CV-3715-KOB, 

2014 WL 1338503, at *4 (N.D. Ala. Mar. 31, 2014)). 

First, “the ALJ did not discredit the validity of [Dr. Blanton’s] IQ tests, but only 

concluded that [Robinson] did not suffer from mental retardation as it is defined under 

Listing 12.05(C) because h[er] deficits in adaptive functioning were not reflective of mental 

retardation.” Perkins, 553 F. App'x at 873.

Second, Long is distinguishable from the present case. There, the district court 

found that the ALJ had “simply reject[ed] a medical opinion regarding mental functioning, 

with no other existing medical opinion...” Long, 2014 WL 1338503, at *15. Here, the ALJ 

gave “substantial weight” to Dr. Blanton’s opinion but assigned more weight to another 

medical opinion, Dr. Stutts’s. As was noted in Long,

[w]hen the evidence shows that the claimant has a mental impairment, the 

ALJ may determine that the claimant is not disabled “ ‘only if the [ALJ] has 

made every reasonable effort’ to obtain the opinion of a ‘qualified psychiatrist 

or psychologist.’ “ McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir.1988) 

(quoting 42 U.S.C.A. § 421(h)); see also 20 C.F.R. § 416.903(e). Because the 

ALJ has a duty to develop the medical record fully and fairly, “it is reversible 

error for an ALJ not to order a consultive examination when such an 

evaluation is necessary for him to make an informed decision.” Holladay v. 

Bowen, 848 F.2d 1206, 1209–10 (11th Cir. 1988); see also Reeves v. Heckler,

734 F.2d 519, 522 n .1 (11th Cir.1984).

2014 WL 1338503, at *4. Here, the ALJ had the opinions of two qualified mental health 

professionals, and, because of their inconsistencies, had to make a decision regarding the 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 24 of 31
25

and the Court finds that Robinson is due no relief on her claims of error in Claim 1.

B. Claim 3

At Step Four, the ALJ determines the claimant’s residual functional capacity 

(“RFC”). See Phillips, 357 F.3d at 1238-39. A claimant’s RFC “is the most [she] can 

still do despite [her] limitations[,]” and an ALJ “assess [the] residual functional 

capacity based on all the relevant evidence in [the claimant’s] case record.” 20 

C.F.R. § 416.945(a)(1). Moreover, the ALJ must consider all known medically 

determinable impairments, including those determined not to be “severe” under the 

applicable SSA regulations. Id. § 416.945(a)(2).

In determining Robinson’s RFC, the ALJ noted:

The record reflects that the claimant has a significant history of 

treatment for diabetes. Early on, the claimant’s diabetes were noted 

as uncontrolled, but non-compliance was also noted. However, after 

continued treatment, the record reflects controlled diabetes. The 

claimant attended routine follow-up visits, including laboratory 

testing. Additionally, nerve conduction studies were performed and 

returned normal. There is little, if any, evidence of complications 

related to the claimant’s diabetes, and on the whole, the record reflects 

that she is well controlled. Therefore,...the undersigned finds that the 

claimant’s diabetes is non-severe.

(R. 57 (record citations omitted)).

Robinson argues that the ALJ’s RFC failed to adequately account for the 

effects of her “uncontrolled diabetes mellitus with complaints of dizziness and 

neuropathy in her lower extremities.” (Doc. 18 at 10). However, the Court finds 

that Robison has failed to demonstrate error in this regard. 

 

weight to assign to each. Robinson has provided no reason (other than that she disagrees 

with the ALJ’s decision) to indicate than another examination was necessary for him to 

make an informed decision.

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 25 of 31
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Robinson cites numerous record exhibits for the general proposition that

“[t]he records are replete with references of this condition and its impact on her 

life.” (Id. (citing R. 218, 220, 234-238, 241-243, 247, 378, 381, 397-399, 414, 434, 

436, 438-441, 443-448, 450-457, 508, 512, 535, 539, 572, 580, 693, 749)). However, 

her more specific contentions – that “there was no consideration of the decreased 

sensation in claimant’s lower extremities, no consideration for the fatigue to which 

she testified nor any consideration of her need for frequent (7-8 in a day) bathroom 

breaks[,]” and that “the ALJ’s specific findings....include any mention of the 

diagnoses made by Dr. Delgado, Dr. Timberlake or Dr. Sudduth with regard to 

neuropathy and glaucoma, nor does he make any mention of the complaints of 

dizziness found throughout the record” (id.) – are bereft of any record citations; 

regardless, Robinson has failed to show that the ALJ failed to take this evidence 

into account. Essentially, Robinson invites the Court to reexamine and reweight 

the record evidence regarding her diabetes, which this Court may not do. See

Winschel, 631 F.3d at 1178. “Furthermore, contrary to [Robinson]’s contention that 

the ALJ ignored evidence favorable to [Robison], “there is no rigid requirement that 

the ALJ specifically refer to every piece of evidence in his decision, so long as the 

ALJ's decision ... is not a broad rejection which is not enough to enable [a reviewing 

court] to conclude that the ALJ considered [the claimant's] medical condition as a 

whole.” Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014) 

(quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam) 

(quotation and brackets omitted))). “The ALJ's decision in this case was not a broad 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 26 of 31
27

rejection and was sufficient to enable...this Court to conclude the ALJ considered 

[Robison]'s medical condition as a whole.” Id. Thus, the Court also rejects 

Robinson’s claims of error at Claim 3.

C. Claim 2

“At step five, the Commissioner must determine that significant numbers of 

jobs exist in the national economy that the claimant can perform. An ALJ may

make this determination...by obtaining the testimony of a vocational expert[,]” 

Winschel, 631 F.3d at 1180 (citations omitted), as occurred here. In response to the 

ALJ’s RFC assessment of “unskilled” for Robinson, the vocational expert (VE) 

testified that Robinson “would be able to perform the requirements of 

representative occupations such as Carding Machine Operator (DOT[17] #681.685-

030, sedentary, unskilled, 66,000 jobs in the national economy, and 1,000 jobs in the 

regional economy), Napper Tender (DOT #585.685-010, sedentary, unskilled, 65,000 

jobs in the national economy, and 1,000 jobs in the regional economy), and Small 

Parts Assembler (DOT #706.685-074, sedentary, unskilled, 142,000 jobs in the 

national economy, and 1,400 jobs in the regional economy.” (R. 64, 139).18 When 

asked by the ALJ whether his testimony was consistent with the DOT, the VE 

responded: “For the most part, yes, sir[,]” noting that he had used his experience in 

addressing the ALJ’s “sit/stand option” hypothetical because it is not addressed by 

the DOT. (R. 141). The ALJ found the VE’s testimony to be “consistent with the 

 17 Dictionary of Occupational Titles

18 The ALJ appears to have relied only on the VE testimony from Robinson’s second SSA 

hearing. As such, the Court need not address Robinson’s claims of error in VE testimony 

from the first hearing.

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 27 of 31
28

information contained in the” DOT. (R. 64). 

Robinson argues that the VE’s testimony is flawed, and the ALJ erred in 

relying on it, because the DOT lists the jobs of napper tender and small parts 

assembler as each having a “specific vocational preparation” (SVP) time of 3, which 

corresponds to “semi-skilled” rather than “unskilled” work. See SSR 00-4P (S.S.A. 

Dec. 4, 2000).

At Step Five, 

“[W]hen the VE's testimony conflicts with the DOT, the VE's testimony 

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

1999). When an apparent conflict between the VE's testimony and the 

DOT arises, however, the ALJ “must elicit a reasonable explanation for 

the conflict before relying on the VE['s testimony].” See SSR 00–4p; 65 

Fed. Reg. 75759 (Dec. 4, 2000). The ALJ must also “[e]xplain ... how 

any conflict that has been identified was resolved.” Id.

Leonard v. Comm'r of Soc. Sec., 409 F. App'x 298, 300-01 (11th Cir. 2011) (per 

curiam) (unpublished). Accord Warren v. Astrue, 830 F. Supp. 2d 1369, 1374 (S.D. 

Fla. 2011).

The Commissioner does not attempt to argue that there was no conflict 

between the VE’s testimony and the DOT, or that the ALJ adequately resolved the 

conflict. Rather, the Commissioner asserts “case law holds that an ALJ commits no 

harmful error under these circumstances where at least one of the jobs the ALJ 

found was available to Plaintiff involves no inconsistencies.” (Doc. 19 at 12 (citing 

Williams v. Astrue, No. 208-CV-477-FTM-29SPC, 2009 WL 2045339, at *2 (M.D. 

Fla. July 8, 2009)). As such, because Robinson “does not object to the carding 

machine operator position, and a review of the record and DOT shows that this 

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 28 of 31
29

position bears no inconsistencies with the ALJ’s RFC or the DOT[,]...the ALJ’s error 

in citing the other jobs as available, if any, is harmless.” (Id. at 13).

The Court finds that,

[e]ven assuming arguendo that the ALJ incorrectly found that the VE's 

testimony was consistent with the DOT, such error was harmless. See 

Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying 

harmless error analysis to ALJ's incorrect statements that were 

irrelevant to whether claimant had a severe impairment). In this 

Circuit, a VE's testimony trumps the DOT to the extent the two are 

inconsistent. See Jones[ v. Apfel], 190 F.3d at 1229–30. The VE opined 

that the ALJ's hypothetical person could perform these three jobs. The 

ALJ was permitted to base his findings about these three jobs 

exclusively on the VE's testimony, irrespective of any inconsistency 

with the DOT, and was not required to seek further explanation. See 

id.

Jones v. Comm'r of Soc. Sec., 423 F. App'x 936, 939 (11th Cir. 2011) (per curiam) 

(unpublished).19 Accord Miller v. Comm'r of Soc. Sec., 246 F. App'x 660, 661-62 

(11th Cir. 2007) (per curiam) (unpublished) (“Even assuming that an inconsistency 

existed between the testimony of the vocational expert and the DOT, the ALJ did 

not err when, without first resolving the alleged conflict, he relied on the testimony 

of the vocational expert. Our precedent establishes that the testimony of a 

vocational expert ‘trumps’ an inconsistent provision of the DOT in this Circuit. 

(citing Jones v. Apfel, 190 F.3d at 1229–30)); Hurtado v. Comm'r of Soc. Sec., 425 F. 

 19 “SSR 00–4p...provides that “[n]either the DOT nor the [VE's testimony] automatically 

‘trumps' ” and instructs the ALJ to “elicit a reasonable explanation” for a conflict between 

the two before relying on the VE's testimony. SSR 00–04p, 2000 WL 1898704 (Dec. 4, 2000). 

Social Security Rulings are not binding on this Court. See B.B. v. Schweiker, 643 F.2d 1069, 

1071 (5th Cir. Unit B Apr. 1981); see also Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th 

Cir. 1982) (providing that [the Eleventh Circuit is] bound by decisions issued by Unit B 

panels of the former Fifth Circuit). To the extent SSR 00–4p conflicts with Jones[ v. Apfel], 

[this Court is] bound by Jones...” Jones v. Comm'r of Soc. Sec., 423 F. App'x at 939 n.4.

Case 2:14-cv-00084-N Document 25 Filed 04/02/15 Page 29 of 31
30

App'x 793, 796 (11th Cir. 2011) (per curiam) (unpublished).

Moreover, Williams v. Astrue, 2009 WL 2045339 (M.D. Fla. July 8, 2009), to 

which the Commissioner has cited, found that where “one of the three jobs...bears 

no inconsistency between the Vocational Expert evidence and the DOT, the error 

was harmless and the ALJ's decision can be upheld if the number of available jobs 

is sufficient to satisfy the Commissioner's burden at Step 5.” 2009 WL 2045339, at 

*3 (citing Martin v. Comm'r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006) 

(unpublished) (“[E]ven if the two positions about which there were inconsistencies 

had been excluded, the ALJ still could have reasonably found that Martin could 

perform the third position of assembler.”); Coleman v. Astrue, 269 F. App’x 596, 

601–02 (7th Cir. 2008) (per curiam) (unpublished)). Here, the VE testified, and the 

ALJ accepted, that there 66,000 carding machine operator jobs in the national 

economy, 1,000 of which were in the regional economy. This constitutes a 

significant number of available jobs; thus, any erroneous reliance by the ALJ on the 

other two positions listed by the VE was harmless. Cf. Allen v. Bowen, 816 F.2d 

600, 602 (11th Cir. 1987) (“The VE also testified that there are 174 [small appliance 

repair] positions in the area where Allen resides. In addition to this testimony, the 

record contains evidence that there are some 1,600 general appliance repair jobs in 

the State of Georgia and some 80,000 such jobs nationwide... On the basis of this 

testimony and the other evidence of record, we find that substantial evidence 

supports the Secretary's decision.”); Martin, 170 F. App'x 369, 375 (“Contrary to 

Martin's position, 870 jobs can constitute a significant number in the geographic 

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region. See Stewart v. Sullivan, 904 F.2d 708 (6th Cir. 1990) (125 jobs in the local 

area is a significant number of jobs)); Coleman, 269 F. App'x at 602 (“We have held 

that 1,400 jobs falls within the parameters of a sufficiently significant occupational 

base. Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993) (citing cases holding that 

even fewer than 750 available positions amounts to a significant occupational base). 

The ALJ's failure to comply with SSR 00–4p was therefore harmless as, at the very 

least, a significant number of jobs cited by the ALJ and not inconsistent with the 

DOT remained available to Coleman.”).

For these reasons, the Court rejects Robinson’s claims of error at Step Five in

Claim 2.

V. Conclusion

In accordance with the foregoing analysis, it is ORDERED that the 

Commissioner’s final decision issued January 14, 2014, denying Robinson’s 

application for SSI benefits is AFFIRMED under 42 U.S.C. § 1383(c)(3).

Final judgment shall issue separately in accordance with this Order and 

Federal Rule of Civil Procedure 58.

DONE and ORDERED this the 2nd day of April 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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