IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

FREDERICK GIPSON, *

*

 Plaintiff, * CIVIL ACTION NO. 14-00536-B

 *

vs. *

*

CAROLYN W. COLVIN, *

Commissioner of Social *

Security, *

 *

Defendant. *

ORDER

Plaintiff Frederick Gipson (hereinafter “Plaintiff”) seeks 

judicial review of a final decision of the Commissioner of 

Social Security denying his claim for a period of disability, 

disability insurance benefits, and supplemental security income 

under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 

401, et seq., and 1381, et seq. On October 9, 2015, the parties 

consented to have the undersigned conduct any and all 

proceedings in this case. (Doc. 14). Thus, the action was 

referred to the undersigned to conduct all proceedings and order 

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

Federal Rule of Civil Procedure 73. Upon careful consideration 

of the administrative record and the memoranda of the parties, 

it is hereby ORDERED that the decision of the Commissioner be 

AFFIRMED.

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I. Procedural History

Plaintiff filed his applications for benefits on April 28, 

2011. (Tr. 172, 174). Plaintiff alleged that he has been 

disabled since November 19, 2010, due to “mental problems, back 

and wrist pain, learning disability, slow learner, mental 

depression, confuse (sic), back problem, lack of knowledge and 

understanding, mood change each and every month, understanding 

what is right and what is wrong.” (Id. at 220, 224).

Plaintiff’s applications were denied and upon timely 

request, he was granted an administrative hearing before 

Administrative Law Judge Mary E. Helmer (hereinafter “ALJ”) on 

January 16, 2013. (Id. at 45). Plaintiff attended the hearing 

with his counsel and provided testimony related to his

impairments. (Id. at 48). A medical expert (“ME”) and a 

vocational expert (“VE”) also appeared at the hearing and 

provided testimony. (Id. at 67, 75). On April 2, 2013, the ALJ 

issued an unfavorable decision finding that Plaintiff is not

disabled. (Id. at 39). The Appeals Council denied Plaintiff’s 

request for review on September 23, 2014. (Id. at 1-2). 

Therefore, the ALJ’s decision dated April 2, 2013, became the 

final decision of the Commissioner. 

Having exhausted his administrative remedies, Plaintiff 

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

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waived oral argument on October 9, 2015 (Doc. 13), and agree 

that this case is now ripe for judicial review and is properly 

before this Court pursuant to 42 U.S.C. §§ 405(g) and 

1383(c)(3).

II. Issues on Appeal

1. Whether the ALJ erred in finding that 

Plaintiff does not meet the criteria for 

Listing 12.05B, and in rejecting the 

opinion of consulting psychologist, Dr. 

Nina Tocci, Ph.D.?

2. Whether the hearing transcript is adequate 

for the Court to review the case?

III. Factual Background

Plaintiff was born on May 1, 1974, and was thirty-eight

years of age at the time of his administrative hearing on 

January 16, 2013. (Tr. 45, 220). Plaintiff testified that he 

was enrolled in special education classes in school and 

completed the eleventh grade, but was unable to pass the high 

school graduation exam. (Id. at 49, 216). Plaintiff’s school 

records reflect poor academic performance throughout his school 

career. (Id. at 216-18).

According to Plaintiff’s testimony and his Work History

Report, he last worked as a machine operator and laborer for a 

lumber company for approximately two and a half years, from 

February 2007 to July 2009. (Id. at 53, 230). Prior to that, 

Plaintiff worked as a machine operator and laborer at a catfish 

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plant and at several warehouses. (Id. at 51-53, 240-47). He 

also worked as a fork lift driver. (Id. at 244). Plaintiff was 

fired from each of these jobs.1 (Id. at 51-53). 

Plaintiff testified that he has problems getting along with 

people, that people make him nervous, and that he prefers to be 

alone. (Id. at 54-58). He also testified that he has been 

taking medication for nervousness, and it helps him stay calm. 

(Id. at 57-58). 

Plaintiff testified that he lives with his mother and 

generally spends his time watching television or sitting on the 

porch. He also socializes with his cousins, an old classmate,

and a girlfriend, and he goes to church. (Id. at 54-56, 256). 

Plaintiff had a driver’s license, but it was suspended because 

of a DUI.2 (Id. at 61-62). 

In his Function Report, Plaintiff reported that his mother 

prepares his breakfast and that he can prepare sandwiches and 

frozen meals. (Id. at 251, 254). He also reported that he has 

“no problem” with personal care and is able to take care of all 

of his own personal care needs; however, his mother tells him 

 1 Plaintiff testified that he could not remember why he was fired 

from each of these jobs, except with respect to his job at 

Foster Farms. Referencing that job, Plaintiff stated, “I think 

I got into it with a supervisor, I think.” (Tr. 53). 

2 Plaintiff was assessed at the Cahaba Center for Mental Health

with alcohol dependency. (Tr. 374-75).

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how to dress and reminds him to take his medication. (Id. at 

253-254). Plaintiff further reported that he can operate a 

riding lawn mower, shop with his mother, and count change; 

however, he does not pay his own bills and has never had a 

checking account. (Id. at 50, 255). Plaintiff reported 

problems understanding, concentrating, and remembering, and also 

indicated that he gets along “ok” with authority figures, but he 

has been fired from jobs for mood changes. (Id. at 257-258). 

According to Plaintiff, his mind comes and goes and will not 

allow him keep a job. (Id. at 251-53). 

IV. Analysis

A. Standard of Review 

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

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

determining 1) whether the decision of the Secretary is 

supported by substantial evidence and 2) whether the correct 

legal standards were applied. 3 Martin v. Sullivan, 894 F.2d 

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

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

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

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

affirmed if they are based upon substantial evidence. Brown v. 

 3 This Court’s review of the Commissioner’s application of legal 

principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th 

Cir. 1987).

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Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. 

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding 

substantial evidence is defined as “more than a scintilla, but 

less than a preponderance” and consists of “such relevant 

evidence as a reasonable person would accept as adequate to 

support a conclusion.”). In determining whether substantial 

evidence exists, a court must view the record as a whole, taking 

into account evidence favorable, as well as unfavorable, to the 

Commissioner’s decision. Chester v. Bowen, 792 F. 2d 129, 131 

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4

(S.D. Ala. June 14, 1999).

B. Discussion

An individual who applies for Social Security disability 

benefits must prove his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. Disability is defined as the “inability to 

engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can 

be expected to result in death or which has lasted or can be 

expected to last for a continuous period of not less than 12

months.” 42 U.S.C. §§ 423(d)(1)(A); see also 20 C.F.R. §§ 

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

provide a five-step sequential evaluation process for 

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determining if a claimant has proven his disability.4 20 C.F.R. 

§§ 404.1520, 416.920. 

In the case sub judice, the ALJ determined that Plaintiff 

has not engaged in substantial gainful activity since November 

19, 2010, the alleged onset date, and that he has the severe 

impairments of drug and alcohol abuse, borderline intellectual 

functioning, mild depression, and antisocial personality 

disorder. (Tr. 30). The ALJ further found that Plaintiff does 

not have an impairment or combination of impairments that meets 

 4 The claimant must first prove that he or she has not engaged in 

substantial gainful activity. The second step requires the 

claimant to prove that he or she has a severe impairment or 

combination of impairments. If, at the third step, the claimant 

proves that the impairment or combination of impairments meets 

or equals a listed impairment, then the claimant is 

automatically found disabled regardless of age, education, or 

work experience. If the claimant cannot prevail at the third 

step, he or she must proceed to the fourth step where the 

claimant must prove an inability to perform their past relevant 

work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In 

evaluating whether the claimant has met this burden, the 

examiner must consider the following four factors: (1) objective 

medical facts and clinical findings; (2) diagnoses of examining 

physicians; (3) evidence of pain; and (4) the claimant’s age, 

education and work history. Id. Once a claimant meets this 

burden, it becomes the Commissioner’s burden to prove at the 

fifth step that the claimant is capable of engaging in another 

kind of substantial gainful employment which exists in 

significant numbers in the national economy, given the 

claimant’s residual functional capacity, age, education, and 

work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 

1985). If the Commissioner can demonstrate that there are such 

jobs the claimant can perform, the claimant must prove inability 

to perform those jobs in order to be found disabled. Jones v. 

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. 

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. 

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

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or medically equals any of the listed impairments contained in 

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

The ALJ concluded that Plaintiff retains the residual 

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

of work at all exertional levels, except that Plaintiff is 

“limited to simple, routine, and repetitive tasks involving 

simple, work-related decisions, with few, if any, work place 

changes; he “is limited to work involving no direct contact with 

the public;” he “can perform work that involves being around coworkers throughout the day, but with only occasional interaction 

with co-workers.” (Id. at 33). The ALJ also determined that 

while Plaintiff’s medically determinable impairments could 

reasonably be expected to produce the alleged symptoms, his

statements concerning the intensity, persistence and limiting 

effects of the alleged symptoms are not credible to the extent 

that they are inconsistent with the RFC assessment. (Id. at 

35).

Utilizing the testimony of a VE, the ALJ found that

considering Plaintiff’s residual functional capacity for a range 

of work at all exertional levels, with the stated restrictions, 

as well as his age, education, and work experience, Plaintiff is 

capable of performing his past work as a lumberyard helper 

(heavy, unskilled) and as a fish machine feeder (medium, 

unskilled). (Id. at 38). Thus, the ALJ concluded that 

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Plaintiff is not disabled. (Id. at 39).

The Court now considers the foregoing in light of the 

record in this case and the issues on appeal. 

1. Issues

A. Whether the ALJ erred in finding that 

Plaintiff does not meet the criteria for 

Listing 12.05B and in rejecting the 

opinion of consulting psychologist, Dr. 

Nina Tocci, Ph.D.?

In this case, Plaintiff argues that the ALJ erred in 

finding that he has the severe impairment of borderline 

intellectual functioning, that the ALJ erred in failing to find 

that he meets the criteria for Listing 12.05B (mental 

retardation), and that the ALJ erred in rejecting the opinion of 

consulting psychologist, Dr. Nina Tocci, Ph.D., and giving 

substantial weight to the opinions of non-examining reviewing 

psychologists, Dr. Ellen Eno, Ph.D., and Dr. Sydney Garner, 

Psy.D.5 (Doc. 8 at 1-3). The Commissioner counters that the ALJ 

did not err in rejecting the opinion of Dr. Tocci because Dr. 

Tocci’s opinion is inconsistent with the substantial evidence in 

the case, that the ALJ did not err in finding that Plaintiff 

does not satisfy the criteria for Listing 12.05B because

Plaintiff’s Full Scale IQ score of 48 is not valid and is not an 

accurate reflection of his capabilities, and that the 

 5 Because these three issues are inextricably interwoven, the 

Court discusses them together.

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substantial evidence (such as Plaintiff’s medical records 

showing alcohol abuse and exaggeration of symptoms, Plaintiff’s 

work history, Plaintiff’s activities of daily living, and the 

opinions of the medical expert, Dr. Garner, and reviewing 

psychologist Dr. Eno) reflect functioning more consistent with a 

finding of borderline intellectual functioning than mental 

retardation. (Doc. 11 at 10-13). Having carefully reviewed the 

record in this case, the Court agrees that Plaintiff’s claim is 

without merit.

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

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

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

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

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

Appendix 1, Listing 12.05B (2010)). In addition, he must 

satisfy the “diagnostic description” of mental retardation in 

Listing 12.05 (the listing category for mental 

retardation/intellectual disability),6 which provides that mental 

 6 On August 1, 2013, the Social Security Administration amended 

Listing 12.05 by replacing the words “mental retardation” with 

“intellectual disability.” See Hickel v. Commissioner of Soc. 

Sec., 539 Fed. Appx. 980, 982 n.2 (11th Cir. 2013) (citing 78 

Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404, 

subpt. P, app. 1)). “This change was made because the term 

‘mental retardation’ has negative connotations, and has become 

offensive to many people. Id. (citations and internal 

quotation marks omitted). “The Social Security Administration 

stated that the change does not affect the actual medical 

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retardation “refers to significantly subaverage general 

intellectual functioning with deficits in adaptive functioning 

initially manifested during the developmental period; i.e., the 

evidence demonstrates or supports onset of the impairment before 

age 22.” 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.05.

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

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

score meeting the Listing criteria creates a rebuttable 

presumption that the condition manifested itself before age 

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

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

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

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

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

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

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

Hodges, 276 F.3d at 1269). 

Indeed, the Eleventh Circuit has made clear that “a valid 

I.Q. score is not conclusive of mental retardation if the score 

is ‘inconsistent with other evidence in the record on the 

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

 

definition of the disorder or available programs or services.” 

Id. (citations and internal quotation marks omitted). As in 

Hickel, this opinion uses the term “mental retardation” and 

“intellectual disability” interchangeably. 

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

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

the ALJ is tasked with determining whether there is sufficient 

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

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

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

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

In addition, as part of the disability determination 

process, the ALJ is tasked with weighing the opinions and 

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

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

different medical opinions and the reasons for doing so. See

Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th 

Cir. 2011). The failure to do so is reversible error. See

Williams v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 

413541, *1 (M.D. Fla. 2009). 

When weighing the opinion of a treating physician, the 

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

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

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

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

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

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

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

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

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

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

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

opinions of non-examining state agency medical and psychological 

consultants because they ‘are highly qualified physicians and 

psychologists who are also experts in Social Security disability 

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

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

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

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

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

Whether considering the opinions of treating, examining, or 

non-examining physicians, good cause exists to discredit the 

testimony of any medical source when it is contrary to or 

unsupported by the evidence of record. Phillips v. Barnhart, 

357 F.3d 1232, 1240 (11th Cir. 2004). “Good cause may also 

exist where a doctor’s opinions are merely conclusory, 

inconsistent with the doctor’s medical records, or unsupported 

by objective medical evidence.” Hogan v. Astrue, 2012 U.S. 

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012). 

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

evidence supports a contrary conclusion.” Sryock v. Heckler, 

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764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (citation 

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx. 

209, 212 (11th Cir. 2010) (The ALJ may reject any medical 

opinion if the evidence supports a contrary finding.).

In this case, the ALJ found that Plaintiff did not meet 

Listing 12.05B on two grounds: (1) the IQ test score was invalid 

and (2) the evidence of Plaintiff’s school history, work 

history, medical records, and daily life are inconsistent with 

an IQ score of 48 and are more consistent with a finding of 

borderline intellectual functioning than mental retardation. 

(Tr. 33-38). In doing so, the ALJ rejected the opinions and IQ 

test results of consultative psychologist, Dr. Tocci, as being 

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

36).

The record shows that Dr. Tocci examined Plaintiff on July 

13, 2011, and conducted IQ testing, which resulted in a Full 

Scale IQ score of 48. Dr. Tocci opined that Plaintiff’s Full 

Scale IQ score was valid. (Id. at 349-51). Dr. Tocci also 

diagnosed Plaintiff with Mental Retardation and noted that 

Plaintiff’s IQ testing, poor academic record, and history of 

being fired from jobs supported the diagnosis.7 (Id. at 349-50).

 7 Dr. Tocci noted that, during testing, Plaintiff evinced 

difficulty understanding and performing simple tasks and that he 

was unable to hold directions in his memory long enough to 

complete a task. (Tr. 351). 

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The ALJ rejected the IQ test results and gave Dr. Tocci’s 

opinions “little weight” based on the fact that they were 

inconsistent with the substantial evidence in the record, 

including Dr. Tocci’s own findings that Plaintiff’s affect was 

appropriate, normal, and stable; his mood was “good;” he was 

oriented to person; his thought content was appropriate to mood 

and circumstances, and he had a logical thought organization. 

(Id. at 36, 350). In addition, Dr. Tocci’s notes reflect that 

she relied on Plaintiff’s report that he requires assistance 

with his activities of daily living and does not have friends; 

however, those statements are inconsistent with his testimony at 

the hearing and his statements to the Agency that he has no 

problem with his personal care needs, that he prepares simple 

meals, that he uses a riding lawnmower to take care of his lawn, 

and that he socializes on the weekends with a classmate, his 

girlfriend, and his cousin. (Id. at 54-56, 253-56). 

In addition, Plaintiff’s IQ test score and Dr. Tocci’s 

diagnosis of mental retardation are inconsistent with the 

remaining substantial evidence in this case, including the 

following: On August 2, 2011, two weeks after Dr. Tocci’s 

evaluation, Plaintiff was diagnosed with ongoing alcohol 

dependency at the Cahaba Center for Mental Health, where he was 

treated for substance abuse by psychiatrist, Dr. Timothy Baltz, 

M.D., and his staff. (Id. at 374-75, 383-84, 387). This is 

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significant because Dr. Tocci’s opinions were based, in part, on 

Plaintiff’s false report that he only drank alcohol “sometimes.” 

(Id. at 349).

In addition, medical expert, Dr. Sydney Garner, Psy.D., 

testified at the hearing that Plaintiff was not functioning in 

the range of a person with an IQ score of 48, that Plaintiff’s

past work history and previous functioning (such as driving) did 

not support a finding of mental retardation, and that alcohol 

use “could have definitely lowered his [IQ] score” and 

interfered with his socialization. (Id. at 65, 69). Dr. Garner 

further noted that Plaintiff’s medical records reflect a history 

of exaggeration of symptomology, which is a feature of 

personality disorder.8 (Id.). 

Consistent with Dr. Garner’s opinion is the opinion of 

Plaintiff’s treating psychiatrist, Dr. Baltz, who noted on more 

than one occasion that Plaintiff “appears to be exaggerating 

symptomology.” (Id. at 371, 388). Dr. Baltz treated Plaintiff 

 8 Dr. Garner opined that Plaintiff suffers from alcohol 

dependence, mild depression, and antisocial personality disorder 

and stated that Plaintiff has no impairments in maintaining 

activities of daily living, has only mild to moderate 

impairments in maintaining concentration, persistence, and pace, 

only moderate impairments in maintaining social functioning, and 

no episodes of decompensation. (Tr. 65-66). Dr. Garner also 

opined that Plaintiff would need limited contact with customers, 

co-workers, and with the general public, unskilled work 

activities, simple, routine, repetitive tasks, simple workrelated decisions, and few workplace changes. (Id.). 

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for almost two years; yet, at no time did he ever indicate that 

Plaintiff was mentally retarded. To the contrary, Dr. Baltz 

estimated Plaintiff’s IQ to be in the “low-average range.”9 (Id.

at 371).

Likewise, the opinions of State Agency reviewer, Dr. Ellen 

Eno, Ph.D., are inconsistent with the opinions of Dr. Tocci. 

Dr. Eno opined that the “claimant’s grades in school and OLSAT 

scores suggest a Borderline IQ. His work history and functional 

behaviors support this. The scores reported by Dr. Tocci are 

not supported by the data in the file.” (Id. at 365). Dr. Eno 

found only mild restrictions in activities of daily living, 

moderate difficulties in maintaining social functioning and 

maintaining concentration, persistence, or pace, and no episodes 

of decompensation. (Id. at 363). 

Also, as previously discussed, the evidence of Plaintiff’s 

previous work history and activities of daily living are 

inconsistent with Dr. Tocci’s opinions and Plaintiff’s IQ score. 

The evidence reflects that Plaintiff worked from 2005 to 2009 in 

approximately eight jobs in various industries as a laborer and 

as a machine operator. (Id. at 51-53, 230, 240-47). While 

Plaintiff reported that he was fired from each of these jobs, he 

 9 Dr. Baltz diagnosed Plaintiff with Mood Disorder, NOS (somewhat 

improved), Anxiety Disorder, NOS, and Selective Mutism features. 

(Tr. 371, 385, 388).

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did not contend that he was not capable of performing the 

assigned job tasks. Instead, Plaintiff asserts that he was 

fired from one job after he “got into it with a supervisor,” and 

he that cannot remember why he was fired from the other jobs. 

(Id. at 51-53). Moreover, Plaintiff’s activities of daily 

living include socializing with friends, a girlfriend, and 

family, going to church, driving (until his license was 

suspended because of a DUI), taking care of his own personal 

needs, fixing simple meals, operating a riding lawn mower, and 

counting change. (Id. at 50, 54-56, 61-62, 251-56). All of 

this evidence is inconsistent with Dr. Tocci’s opinions and 

Plaintiff’s Full Scale IQ score of 48. 

Finally, the Court finds it instructive that on June 30, 

2011, Dr. Stephen Robidoux, M.D., attempted to conduct a 

consultative physical examination to evaluate Plaintiff’s claims 

of back problems. However, Dr. Robidoux reported that Plaintiff 

became belligerent and would not allow the examination to 

proceed except on Plaintiff’s terms. (Id. at 344-47). Dr. 

Robidoux’s notes reveal that Plaintiff was fully in control of 

his examination; he had no difficultly articulating his demands; 

and he was functioning well above the expectations of an 

individual with a Full Scale IQ score of 48. 10 Dr. Robidoux 

 10 Dr. Robidoux documented the following statement by Plaintiff: 

“In 2006 or 2007 or 2008, I was working in a warehouse lifting 

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diagnosed Plaintiff with “sociopathic personality disorder.” 

(Id. at 346). This evidence supports the ALJ’s finding that 

Plaintiff is functioning above the range of an individual with a 

Full Scale IQ score of 48 and that his IQ is more consistent 

with borderline intellectual functioning than mental 

retardation.11

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

academic performance in school, his special education classes, 

and the letter from Plaintiff’s former teacher, Callie Sanders,

stating that Plaintiff struggled in school and that it was her 

 

50 to 100 pound boxes and my back WENT OUT[.] That’s it[.] MY 

BACK WENT OUT[.] [W]hat else do you need to know??” (Tr. 344). 

Dr. Robidoux documented that Plaintiff became very belligerent 

when asked the meaning of “his back went out,” and refused to 

answer. Dr. Robidoux called Plaintiff’s disability specialist 

on the telephone and had her speak to Plaintiff. Thereafter, 

Plaintiff resumed his tirade, stating: “Then I fell down, 

doesn’t everybody whose back goes out? I don’t know how you got 

your license. I went by car the next day to a doctor in 

Birmingham. I don’t know his name. He x-rayed me and ran tests. 

Then he gave me medicine. I haven’t been to a doctor for my 

back since then. I haven’t been to anyone else. No 

chiropractor, no physical therapy, no back surgery, no epidural 

shots. I don’t know what a CT or MRI scan is. I told you he 

did x-rays and tests.” (Id.). When Dr. Robidoux then tried to 

conduct the physical examination, Plaintiff told him, “I will 

tell you what you can look at.” (Id. at 345). Dr. Robidoux was 

required to ask permission, and have permission granted, to 

examine each body system. (Id.). Plaintiff refused many parts 

of the examination. 

11 Dr. Eno agreed with Dr. Robidoux that the evidence suggests “a 

Borderline IQ combined with a Personality Disorder.” (Tr. 365). 

Dr. Eno concluded that, “[t]he personality problems displayed in 

Dr. Robidoux[’s] evaluation make retesting for a more valid IQ 

unproductive.” (Id.). 

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opinion that “mentally he is not cable (sic) of holding a job.”12 

(Id. at 219, 274, 287). However, as the ALJ found, even 

considering this evidence, the substantial evidence reflects a 

level of functioning that is higher than Plaintiff’s Full Scale 

IQ score of 48 would indicate and that is more consistent with 

borderline intellectual functioning than mental retardation. 

Based on the foregoing, the Court finds that the ALJ had 

good cause to reject the opinions and IQ test results of 

consultative psychologist, Dr. Tocci, as being inconsistent with 

the substantial evidence in the case. In addition, the Court 

finds that substantial evidence in this case supports the ALJ’s 

finding that Plaintiff did not meet Listing 12.05B because (1) 

the IQ test score was invalid, and (2) even assuming a valid 

score, the evidence of Plaintiff’s work history, medical 

records, and activities of daily living rebuts the presumption 

of mental retardation and supports the ALJ’s finding that 

Plaintiff can perform his past work as a lumberyard helper 

(heavy, unskilled) and as a fish machine feeder (medium, 

unskilled) and, thus, is not disabled. (Tr. 33-38). 

Accordingly, Plaintiff’s claim must fail.

 12 The ALJ properly considered Ms. Sanders’ opinion in accordance 

with SSR 06-03p but held that her opinion was not based on 

objective facts or data and that her opinion, which was more 

properly reserved for the Commissioner, was, in any event, 

inaccurate given the evidence in the case. (Tr. 34).

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B. Whether the hearing transcript is 

adequate for the Court to review the 

case?

Next, Plaintiff argues that the transcript of his

administrative hearing shows that there were significant 

problems with sound quality during the hearing, resulting in an 

incomplete hearing transcript of portions of the Plaintiff’s and 

the experts’ testimony. (Doc. 8 at 11). The Commissioner 

counters that, while some portions of the audio recording of the 

hearing were inaudible, the transcript is sufficient to allow 

the Court’s review. (Doc. 11 at 14-17). Having carefully 

reviewed the record in this case, the Court agrees that 

Plaintiff’s claim is without merit. 

The Court recognizes that the ALJ “has a duty to develop a 

full and fair record.” George v. Astrue, 338 Fed. Appx. 803, 

805 (11th Cir. 2009) (quoting Brown v. Shalala, 44 F.3d 931, 934 

(11th Cir. 1995)). Nonetheless, an ALJ’s failure to fulfill his 

duty to fully develop the record “only necessitates a remand if 

‘the record reveals evidentiary gaps which result in unfairness 

or clear prejudice.’” Mosley v. Acting Commissioner of Soc. 

Sec. Admin., 2015 U.S. App. LEXIS 21193, *7, 2015 WL 8105166, *3 

(11th Cir. Dec. 8, 2015) (quoting Brown, 44 F.3d at 935). “In 

other words, ‘there must be a showing of prejudice before we 

will find that the claimant’s right to due process has been 

violated to such a degree that the case must be remanded to the 

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[ALJ] for further development of the record.’” Id. (quoting 

Brown, 44 F.3d at 935). “Prejudice requires a showing that ‘the 

ALJ did not have all of the relevant evidence before him in the 

record (which would include relevant testimony from claimant), 

or that the ALJ did not consider all of the evidence in the 

record in reaching his decision.’” Id. (quoting Kelley v. 

Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)). 

In this case, Plaintiff points to inaudible portions of the 

testimony of the medical expert, Dr. Garner, related to 

Plaintiff’s IQ test scores and the question of whether Plaintiff 

met or equaled a listing. (Doc. 8 at 11). In the selected

passage, Dr. Garner made it clear that Plaintiff did not meet or 

equal a listing, and, while it is unclear precisely to what he 

was referring when he said, “they’re just not valid,” it seems 

reasonable given his discussion of Plaintiff’s IQ test results 

in the previous sentences that he was referring to the 

invalidity of Plaintiff’s IQ test scores. (Id. at 65). Indeed, 

Dr. Garner specifically stated that Plaintiff had IQ scores in 

the 40’s and 50’s and that he did not believe that Plaintiff was 

functioning in that range. (Id. at 65). 

Similarly, Plaintiff points to Dr. Garner’s discussion of 

Plaintiff’s school records and argues that inaudible portions of 

Dr. Garner’s testimony make that passage incomprehensible. 

(Doc. 8 at 12). To the contrary, it is apparent to the Court 

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that Dr. Garner was testifying that Plaintiff’s test score, 

which he described as “a 78,” was a reference to the 78 that 

Plaintiff scored on the Otis Lennon School Ability Test (OLSAT), 

a test score that Dr. Eno likewise found significant in her 

Psychiatric Review Technique.13 (Id. at 288, 365). Dr. Garner 

testified that this test score was inconsistent with a diagnosis 

of mental retardation, as was Plaintiff’s level of functioning 

and his work history. (Id. at 66). 

Last, Plaintiff refers to inaudible gaps in the testimony 

of the VE related to a hypothetical posed by the ALJ. (Doc. 8 

at 12). While it is unclear precisely which restrictions the 

ALJ posited in the second, partially inaudible hypothetical, the 

ALJ’s decision reveals that he relied on the VE’s testimony 

related to the first hypothetical, which was fully recorded. 

(Id. at 38, 76-77). Therefore, Plaintiff’s argument related to

the second hypothetical, which was not relied upon by the ALJ,

is unavailing. 

Having reviewed the transcript at length, the Court finds 

that, despite the court reporter’s designations of some portions 

of the transcript as “inaudible,” the record as a whole is 

neither incomplete nor inadequate. To the contrary, the 

passages referenced by Plaintiff contain some missing words but 

 13 Dr. Eno opined that a 78 on the OLSAT suggested a borderline 

IQ. (Tr. 365).

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are still capable of reasonable interpretation and do not 

demonstrate unfairness or prejudice to the Plaintiff.

Accordingly, Plaintiff’s claim is without merit.

V. Conclusion 

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby ORDERED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for a 

period of disability, disability insurance benefits, and 

supplemental security income be AFFIRMED.

DONE this 28th day of March, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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