1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES WARD, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 14-515-M

 :

CAROLYN W. COLVIN, :

Commissioner of Social Security, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), 

Plaintiff seeks judicial review of an adverse social security ruling 

denying a claim for disability insurance benefits and Supplemental 

Security Income (hereinafter SSI) (Docs. 1, 13). The parties filed 

written consent and this action has been referred to the undersigned 

Magistrate Judge to conduct all proceedings and order judgment in 

accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 19). 

Oral argument was heard on June 29, 2015. After considering the 

administrative record, the memoranda of the parties, and oral 

argument, it is ORDERED that the decision of the Commissioner be 

REVERSED and that this action be REMANDED for further 

administrative procedures consistent with this Court’s Order.

This Court is not free to reweigh the evidence or 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 1 of 25
2

substitute its judgment for that of the Secretary of Health and 

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 

(11th Cir. 1983), which must be supported by substantial 

evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The 

substantial evidence test requires "that the decision under 

review be supported by evidence sufficient to justify a 

reasoning mind in accepting it; it is more than a scintilla, but 

less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 

(D. Md. 1982).

At the time of the administrative hearing, Ward was twentynine years old, had completed an eleventh-grade education (Tr. 

63), and had previous work experience as a milk receiver for a 

tank truck, net fisherman, and a forklift operator (Tr. 78). In 

claiming benefits, Plaintiff alleges disability due to a closed 

head injury, right hand and shoulder injuries, and a depressive 

disorder (Doc. 12).

The Plaintiff filed applications for disability benefits 

and SSI on June 14, 2010, asserting a disability onset date of 

May 14, 2010 (Tr. 160-72; see Tr. 15). Benefits were denied 

following a hearing by an Administrative Law Judge (ALJ) who 

determined that although he could not return to his past 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 2 of 25
3

relevant work, there were specific medium-exertion jobs that he 

could perform (Tr. 15-25). Plaintiff requested review of the 

hearing decision (Tr. 7-11) by the Appeals Council, but it was 

denied (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Ward alleges 

that: (1) The ALJ did not properly consider his pain and 

limitations; (2) the ALJ improperly rejected the opinions of 

examining physicians; (3) the ALJ did not state what weight he 

gave certain evidence; (4) the ALJ did not properly develop the 

record; and (5) the Appeals Council failed to properly review 

evidence submitted to it (Doc. 13). Defendant has responded to—

and denies—these claims (Doc. 14). The relevant evidence of 

record follows.

On January 21, 2006, Ward went to the DCH Regional Medical 

Center ER for treatment of multiple scalp lacerations after 

being pistol-whipped, resulting in a closed head injury (Tr. 

274-87). Plaintiff also had moderate tenderness in the right 

wrist and right proximal forearm. CT’s of the head and cervical 

spine were normal. There were no significant bone abnormalities 

in the right forearm.

On June 4, 2010, Plaintiff was treated at Uniontown Health 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 3 of 25
4

Center for a snake bite on his right leg (Tr. 291-95).

On September 24, 2010, Dr. John C. Simmons examined Ward 

whose chief complaint was memory loss and poor concentration as 

a result of his previous pistol-whipping and concussion; he also 

experienced right hand pain and swelling, right shoulder and 

neck pains, and chronic head pain (Tr. 297-301). Simmons noted 

swelling in the right hand and wrist as well as decreased grip 

strength and dexterity; he also had decreased range of motion 

(hereinafter ROM) in the right wrist, arm, and forearm. It was 

the Doctor’s opinion that Ward “would have difficulty performing 

work related physical activities using right arm or hand 

including activities such as lifting, carrying, etc. 

[Plaintiff] would also have difficulty with any work requiring 

manual dexterity using right hand. Also, any work requiring use 

of his memory would be difficult” (Tr. 299). Simmons completed 

an ROM chart showing the diminished capacities (Tr. 300-01).

On October 29, 2010, Dr. E. Russell March, Jr. reviewed 

Plaintiff’s medical record and, without benefit of examination, 

determined that he could lift and/or carry fifty pounds 

occasionally and twenty-five pounds frequently; he could sit and 

stand/walk for six hours each during an eight-hour day (Tr. 304-

11). Ward would be limited in operating hand controls. Ward

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 4 of 25
5

could climb a ladder, rope, or scaffolds only occasionally but 

could frequently climb a ramp or stairs as well as balance, 

stoop, kneel, crouch, and crawl. Though Plaintiff would be 

limited in reaching or with gross manipulation, fine 

manipulation was not a problem. 

On November 15, 2010, Psychologist Richard S. Reynolds 

examined Ward who provided his own psychological and medical 

history (Tr. 313-15). The Psychologist noted Plaintiff was 

oriented in four spheres; mood was “down” and affect was mildly 

dysthymic. Thought content was logical and associations were 

tight; recent and remote memory, judgment, insight and decisionmaking abilities were intact. It was Reynolds’s opinion that 

Plaintiff’s “ability to understand, carryout, to remember 

instructions, and to respond appropriately to supervision, 

coworkers, work pressures in a work setting appear intact. Mr. 

Ward may be experiencing some mild depression secondary to 

medical issues, however, [sic] there is no significant 

psychological impairment noted or reported by the claimant” (Tr. 

315). 

On December 20, 2010, Psychologist Joanna Koulianos 

reviewed Plaintiff’s medical record and, without benefit of 

examination, completed a Psychiatric Review Technique Form 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 5 of 25
6

indicating that Plaintiff suffered from an Adjustment Disorder 

with a depressed mood (Tr. 316-29). The Psychologist further 

indicated that Ward would have only mild limitations in his 

daily activities, maintaining social functioning, and in 

maintaining concentration, persistence, or pace.

On September 7, 2011, Psychologist Nina E. Tocci examined 

Plaintiff, finding him oriented in four spheres; he had a good 

fund of information and comprehension, but his ability to 

abstract was impaired (Tr. 334-37). Ward’s thought content was 

logical and appropriate to mood and circumstances. He rated his 

pain as ten, daily, on a ten-point scale. Plaintiff had some 

insight, fair social judgment, and appeared to be functioning 

within the borderline range of intellectual ability. Tocci 

diagnosed him to have a Depressive Disorder, NOS and determined 

he had only a poor prognosis; she indicated that he currently 

had—and had had for a year—a GAF of 60.1 The Psychologist stated 

that she had reviewed the record in reaching her conclusions and 

recommended that Ward be evaluated by a neurologist as he had 

“described symptoms that are consistent with [Traumatic Brain 

Injury) and other symptoms” (Tr. 336). 

 1

A GAF score between 61 and 70 indicates “[s]ome symptoms OR some 

difficulty in social, occupational, or school functioning, but 

generally functioning pretty well, has some meaningful interpersonal 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 6 of 25
7

On September 12, 2011, Dr. Stephen J. Robidoux examined 

Plaintiff for complaints of right hand and head swelling; he was 

oriented in three spheres with intact past and present memory

(Tr. 339-43). Ward had full ROM throughout his body; the 

examination was normal. Robidoux indicated that there was no 

explanation for Plaintiff’s assertion that he could not feel 

fine touch on his entire right arm. The Doctor said he had no 

limitations in “sitting, standing, walking, running, lifting, 

carrying, pushing, pulling, climbing, squatting, handling 

objects, using hand and foot controls, talking, listening and 

travel” (Tr. 342-43). 

On September 29, 2011, Psychologist Donald E. Hinton

reviewed Ward’s medical record and, without benefit of 

examination, completed a Psychiatric Review Technique Form 

indicating that Plaintiff had been diagnosed to have had a 

closed head injury and a depressive disorder (Tr. 344-57). 

Hinton determined that he had mild limitations in his daily 

activities and moderate limitations in maintaining social 

functioning and in maintaining concentration, persistence, or 

pace; Ward had never had an episode of decompensation of 

extended duration. On the same date, the Psychologist completed 

 relationships.” See

https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 7 of 25
8

a Mental Residual Functional Capacity Assessment that Plaintiff 

would be moderately limited in his ability to understand, 

remember, and carry out detailed instructions and in maintaining 

attention and concentration for extended periods (Tr. 358-61). 

Likewise, Ward would be moderately limited in interacting 

appropriately with the general public, accepting instructions 

and responding appropriately to criticism from supervisors, and 

responding appropriately to changes in the work setting. Hinton 

also found Plaintiff capable of doing the following:

A) Able to understand and recall simple 

instructions, not detailed.

B) Able to carry out simple tasks 

adequate to complete 8 hr work days provided 

customary breaks are given. Can maintain 

attention and concentrate 2+ hrs with 

customary breaks.

C) Able to work with public and coworkers in a casual capacity and can accept 

non-threatening supervision with supportive 

feedback.

D) Demands at work should mostly be 

routine.

(Tr. 360).

On April 30, 2012, Dr. Jack Bankhead, reviewed Plaintiff’s 

medical record and, without benefit of examination, completed a 

case analysis indicating that Ward was not qualified for 

disability payments (Tr. 362-63).

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 8 of 25
9

On December 11, 2011, Hale County Hospital reported that 

Ward had been in an altercation and was hit in the back of the 

head and left eye with an iron rod (Tr. 373-80). On September 

15, 2012, Ward complained of a headache and swelling on the 

right side of his head, related to his sinuses (Tr. 365-72). 

This concludes the Court’s summary of the record evidence.2

Ward first claims that the ALJ did not properly consider 

his testimony of pain and limitation. He more specifically 

claims that the ALJ either misunderstood or mischaracterized the 

evidence in reaching her decision (Doc. 13, pp. 9-13). 

The standard by which Plaintiff's complaints of pain are to 

be evaluated requires "(1) evidence of an underlying medical 

condition and either (2) objective medical evidence that 

confirms the severity of the alleged pain arising from that 

condition or (3) that the objectively determined medical 

condition is of such a severity that it can be reasonably 

expected to give rise to the alleged pain." Holt v. Sullivan, 

921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 

782 F.2d 1551, 1553 (11th Cir. 1986)). The Eleventh Circuit 

Court of Appeals has also held that the determination of whether 

objective medical impairments could reasonably be expected to 

 2

One exam will be reviewed later in connection with Ward’s claim 

that it was not properly considered by the Appeals Council.

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 9 of 25
10

produce the pain was a factual question to be made by the 

Secretary and, therefore, "subject only to limited review in the 

courts to ensure that the finding is supported by substantial 

evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.), 

vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated 

sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986). 

Furthermore, the Social Security regulations specifically state 

the following:

statements about your pain or other symptoms 

will not alone establish that you are 

disabled; there must be medical signs and 

laboratory findings which show that you have 

a medical impairment(s) which could 

reasonably be expected to produce the pain 

or other symptoms alleged and which, when 

considered with all of the other evidence 

(including statements about the intensity 

and persistence of your pain or other 

symptoms which may reasonably be accepted as 

consistent with the medical signs and 

laboratory findings), would lead to a 

conclusion that you are disabled.

20 C.F.R. § 404.1529(a) (2014).

The ALJ found Ward’s impairments could be expected to cause 

symptoms, but that his “statements concerning the intensity, 

persistence and limiting effects of these symptoms [were] not 

entirely credible” (Tr. 22). As support, she pointed to a 

report Plaintiff completed saying that he could take care of his 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 10 of 25
11

personal needs, drive, do his personal shopping, and handle his 

financial affairs (Tr. 22; cf. Tr. 218-25). 

The Court notes that the ALJ also acknowledged Ward’s 

statements that he did not prepare meals or do any house- or 

yard-work; she reported his statements that he had fished in the 

past, but no longer could because of his right hand pain (Tr. 

22; cf. Tr. 218-25). The ALJ relayed Ward’s testimony that his 

impairments affected his ability to lift, stand, reach, walk, 

hear, complete tasks, concentrate, understand, use his hands, 

and get along with others and that he had memory problems, could

not pay attention or follow instructions, and did not handle 

stress or routine changes well. In another questionnaire, Ward 

indicated that he had difficulty buttoning his shirt and pulling 

up his pants, shaving, and grooming with his right hand; it hurt 

his right hand putting the car in gear to drive, but he just 

dealt with it (Tr. 22; cf. Tr. 212-24). 

Plaintiff correctly points out, though, that the ALJ, in 

summarizing the evidence, reported some of it incorrectly (Doc. 

13, pp. 9-11). For example, she cited a report by Psychologist 

Reynolds for a statement made by Ward that he played video games 

and played with his dog (Tr. 22; cf. 314).3 Reynolds actually 

 3

The Court notes that Reynolds’s report contradicts Plaintiff’s 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 11 of 25
12

reported that Plaintiff had stated that he used to play video 

games, but no longer did because of his hand pain (Tr. 314); the 

ALJ also failed to acknowledge Ward’s testimony at the hearing 

that he could no longer play those games (Tr. 73). The ALJ’s 

use of this video game evidence to discredit Ward was error.

In another instance cited, the ALJ reported that Plaintiff 

“was able to prepare simple meals such as sandwiches” (Tr. 22). 

Ward reported that he could prepare sandwiches, but did not 

indicate an ability to put any other meal together (see Tr. 207, 

213; cf. Tr. 220); he did testify, though, about barbequing (Tr. 

67). The Court sees no slight here.

Ward also complains that although the ALJ noted that he 

regularly attended sporting events, she failed to note that he 

needed to be reminded of the events and someone to accompany him 

(Doc. 13, p. 9; Tr. 22; cf. Tr. 222). While Plaintiff’s 

assertion is true, it does not diminish the fact that he was 

participating in the activities.

Ward also took issue with the ALJ’s statements describing 

“daily headaches with dizziness caused by running” (Tr. 23; cf.

Tr. 209-10). The Court finds it unlikely that the ALJ—or 

anybody else for that matter—thinks that Plaintiff “runs every 

 statement that he did not take care of any pets (see Tr. 219).

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 12 of 25
13

day and causes himself to have headaches” (Doc. 13, p. 10).

Plaintiff dislikes the ALJ’s characterization of his 

unsuccessful work attempt in that she concluded that it

“indicate[d] that the claimant’s daily activities have been 

somewhat greater than the claimant has generally reported” (Tr. 

23; Doc. 13, p. 10). Evidence shows that Ward testified that he 

had worked full-time, pumping milk from an eighteen-wheeler to a 

silo, but he received help from a brother-in-law and co-worker 

because he could not do it all himself, though no other employee 

received similar help (Tr. 64, 72-73); the ALJ did not report 

this accommodation. Plaintiff argues that this testimony 

enhances his credibility, rather than diminishes it as found by 

the ALJ. The Court must confess that it can make no sense of 

this particular argument.

Ward also argues against the ALJ’s characterization of his 

work history as “significant” during the four-year period 

preceding his onset date during which Ward had been experiencing 

the same problems for which he now claims disability (Doc. 13, 

pp. 10-11; cf. Tr. 23). While the Court would not characterize 

that work history as significant (see Tr. 179-81), the Court 

finds the ALJ’s word choice harmless. The ALJ correctly pointed 

out that the evidence shows that Ward was able to work, to some 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 13 of 25
14

degree, for four years before asserting disability, with no 

apparent change in impairment or symptomatology.

Ward further asserts that the ALJ’s discounting of his pain 

and limitations is misplaced in that she failed to note his 

repeated assertions that he lacked money or insurance to obtain 

treatment (Doc. 13, p. 11; cf. Tr. 23). The record reflects 

Plaintiff’s testimony concerning his lack of resources before 

the ALJ (Tr. 67, 74) and to examiners (Tr. 334, 384). The 

Eleventh Circuit Court of Appeals has held that poverty excuses 

noncompliance with medical treatment. Dawkins v. Bowen, 848 

F.2d 1211, 1213 (11th Cir. 1988). 

The ALJ’s decision is silent as to Ward’s assertions of an 

inability to pay. The Government attempts to correct this 

oversight in asserting that Plaintiff once received care for a 

snakebite from Uniontown Health Clinic, “a medical center 

offering free or discounted health services to individuals who 

qualify;” Defendant goes on to point out that Ward had no 

complaints at the ER besides the snakebite (Doc. 14, pp. 5-6; 

cf. Tr. 291-94).4 While the ALJ—instead of the Government 

playing cleanup—should have reached this conclusion, it appears 

that health care was available to Ward, but he did not use it.

 4

As support, the Government cites the following: http://freeCase 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 14 of 25
15

The Court finds Plaintiff’s argument that the ALJ did not 

properly consider his claims of pain and limitation to be 

without merit. Though there is error in the decision, it is, at 

most, even cumulatively, harmless.

Plaintiff next claims that the ALJ improperly rejected the 

opinions of two examining physicians, specifically referencing 

the reports from Dr. Simmons and Psychologist Tocci (Doc. 13, 

pp. 13-14). It should be noted that "although the opinion of an 

examining physician is generally entitled to more weight than 

the opinion of a non-examining physician, the ALJ is free to 

reject the opinion of any physician when the evidence supports a 

contrary conclusion." Oldham v. Schweiker, 660 F.2d 1078, 1084 

(5th Cir. 1981);5 see also 20 C.F.R. § 404.1527 (2014).

In her determination, the ALJ discounted those two opinions 

because she found them “grossly inconsistent with the lack of 

supporting medical evidence and stated activities of daily 

living (Exhibit B9E and B6F), as well as inconsistent with the 

professional opinions of Dr. Reynolds, Dr. Robidoux, and Dr. 

Hinton” (Tr. 23). 

The evidence shows that Dr. Robidoux’s physical examination 

 clinics.com/clinic/uniontown-health-center-uniontown-alabama-36786/

5

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

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

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 15 of 25
16

is at odds with that of Dr. Simmons regarding Ward’s use of his 

right arm/wrist; while Simmons found that Plaintiff would have 

difficulty performing activities with his right arm and hand 

(Tr. 299), Robidoux placed no restrictions on him at all (Tr. 

342-43). X-rays, dating from the time of the injury, showed 

nothing abnormal (Tr. 277).

Psychologist Tocci examined Ward and indicated that he was 

functioning at the borderline range of intelligence ability and 

had non-specified depression; though his prognosis was poor, 

Tocci did not indicate that his impairments would keep him from 

working (Tr. 336). Psychologist Reynolds examined Plaintiff and 

determined that although he had mild depression, there was no 

psychological reason he could not work (Tr. 315). Psychologist 

Hinton did not examine Plaintiff in determining that he had had 

a closed head injury and a depressive disorder but could work 

within certain specified, but not marked or extreme, limitations

(Tr. 358-60). Ward argues that “[t]here is no inconsistency 

between Dr. Tocci’s findings and the opinion of non-examiner Dr. 

Hinton” (Doc. 13, p. 13). The Court acknowledges the 

similarities of their reports, pointing out that Hinton clearly 

found Plaintiff able to work.

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

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 16 of 25
17

The ALJ discounted Tocci’s and Simmons’s reports also as 

being inconsistent with Ward’s daily activities. The Court has 

reviewed those activities—and the ALJ’s assessment of them—in 

discussing the prior claim and found support for her conclusion 

that Ward’s testimony was not fully credible. Likewise, 

although the Court does not find the conclusions of Tocci and 

Simmons “grossly inconsistent” with the balance of the record, 

there is substantial support for the ALJ’s decision to give 

greater weight to the other evidence.

Plaintiff next asserts that the ALJ did not state what 

weight he gave certain evidence, specifically pointing to the 

reports of three non-examiners, Drs. March and Bankhead and 

Psychologist Koulianos. Ward asserts that March’s and 

Bankhead’s opinions supported Dr. Simmons’s conclusions 

(rejected by the ALJ) and that Koulianos’s report was based on 

the report of Dr. Reynolds (given weight by the ALJ) (Doc. 13, 

pp. 14-15).

The Court notes that the ALJ is required to "state 

specifically the weight accorded to each item of evidence and 

why he reached that decision." Cowart v. Schweiker, 662 F.2d 

731, 735 (11th Cir. 1981). 

The Court previously summarized the report of Dr. March 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 17 of 25
18

(Tr. 304-11) and now finds that the conclusions there are less 

restrictive than the ALJ’s determination of Ward’s residual 

functional capacity (Tr. 20). Dr. Bankhead’s report consisted 

of little more than a recitation of the evidence he reviewed, 

his only conclusion being that Plaintiff was not qualified for 

disability payments (Tr. 362-63); this is consistent with the 

ALJ’s determination. The report completed by Koulianos found 

only mild limitations (Tr. 316-29), consistent with the ALJ’s 

decision. The Court finds that the ALJ committed error in not 

reporting—and weighing—this evidence, but finds it harmless as 

its inclusion would not have changed her conclusions.

Plaintiff next claims that the ALJ did not properly develop 

the record. Specifically, he points to Psychologist Tocci’s 

recommendation that Ward be evaluated by a neurologist as he had 

“described symptoms that are consistent with [Traumatic Brain 

Injury) and other symptoms” (Tr. 336; Doc. 13, pp. 15-16). Ward 

also points to his own motion for an examination by a 

neurologist (Tr. 270), left unaddressed by the ALJ. 

The Eleventh Circuit Court of Appeals has required that "a 

full and fair record" be developed by the ALJ even if the 

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

F.2d 731, 735 (11th Cir. 1981). However, the ALJ “is not 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 18 of 25
19

required to order a consultative examination as long as the 

record contains sufficient evidence for [her] to make an 

informed decision.” Ingram v. Commissioner of Social Security 

Administration, 496 F.3d 1253, 1269 (11th Cir. 2007) (citing

Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)). 

In this action, the ALJ obtained consultative examinations 

by Dr. Simmons (Tr. 297-301), Psychologist Reynolds (Tr. 313-

15), Psychologist Tocci (Tr. 334-37), and Dr. Robidoux (Tr. 339-

43). In addition to that, he had non-examiners Dr. March (Tr. 

304-11), Psychologist Koulianos (Tr. 316-29), Psychologist 

Hinton (Tr. 344-57), and Dr. Bankhead (Tr. 362-63) review the 

record and report their findings.6 Additionally, a Vocational 

Expert testified at the hearing (Tr. 78-84). The Court finds 

that the evidence generated in those reports provide substantial 

evidence for the ALJ’s conclusion that Ward was not disabled.

Ward lastly claims the Appeals Council failed to properly 

review the evidence generated by Neuropsychologist John R. 

Goff’s examination of April 22, 2013 (Doc. 13; see Tr. 381-90). 

The record shows that Ward submitted the evidence the same day 

the ALJ’s decision was entered (Tr. 25, 31). Its review passed 

to the Appeals Council that considered it, but found no basis 

 6

The Court again notes the ALJ’s failure to acknowledge the 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 19 of 25
20

for changing the ALJ’s decision (Tr. 2). The Court’s review of 

that evidence follows.

On April 22, 2013, Neuropsychologist John R. Goff performed 

an examination after reviewing the record evidence and found 

Plaintiff oriented as to time, place, and person (Tr. 381-90). 

He administered the Victoria Symptom Validity Test, the results 

of which Goff found valid; however, the personality assessment 

results were considered invalid because of a lack of 

understanding. On the Wechsler Adult Intelligence Scale (WAISIV), Ward scored a verbal comprehension of 68/2, perceptual 

reasoning of 65/1, working memory of 74/4, and processing speed 

of 79/8; the first two fell within the mildly retarded range 

while the latter two fell within borderline range of 

intelligence. The full scale IQ score was 65 and the General 

Ability Index was 63, both in the mildly retarded range; Goff 

voiced his belief that the scores were valid. The ReitanIndiana Aphasia Screening Test demonstrated primitive 

handwriting, poor spelling, reading at the fourth-grade level, 

and the ability to perform simple math. Grip strength was half 

of what was expected on the left and only twenty percent on the 

right; dexterity measured below the first percentile, showing 

 reports of March, Koulianos, and Bankhead.

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 20 of 25
21

that Ward had troubled hands and arms. Plaintiff received 

normal scores on a test of visual motor problem solving skills; 

he had very low scores on the Wechsler Memory Scale (WMS-III). 

The Wide Range Achievement Test (WRAT-IV) revealed reading at 

the mid-fifth-, math computation at the beginning fourth-, and 

spelling at the sixth-grade level. Goff stated that it was 

“possible that this man has always been functioning within the 

mildly retarded range of psychometric intelligence but we cannot 

be sure about that and without some additional information and 

workups it is pretty difficult to say” (Tr. 387). He further 

stated that he thought Ward’s right arm pain was real and that 

he was not a malingerer. Finally, the Psychologist noted:

During this examination he was able to 

understand, follow and remember simple 

instructions. He has difficulties with 

complex instructions and with remembering 

instructions in general. He has more 

problems carrying out instructions 

particularly if he has to use his dominant 

hand and arm which is weak and mal-dexterous 

and affected by pain. He would be seen as 

preoccupied with his discomfort and 

problematic in terms of memory by 

supervisors, co-workers and others. These 

physical difficulties represent impediments 

to his ability to deal with the stresses and 

pressures of the workplace as well.

(Tr. 387). Goff went on to find Ward functioning within the 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 21 of 25
22

mildly retarded range of psychometric intelligence, likely 

representing a decline from previous functioning. The 

Psychologist also completed a Medical Source Opinion Form 

(Mental) indicated that Plaintiff was markedly limited in his 

ability to understand detailed or complex instructions and 

respond to customary work pressures and was extremely limited in 

carrying out simple, detailed, or complex instructions and in 

maintaining attention concentration or pace for periods of at 

least two hours (Tr. 389-90). It was Goff’s opinion that Ward 

had demonstrated deficits in adaptive functioning in work, 

health, and functional academic skills before he turned twentytwo years old. 

With regard to a claim that the Appeals Council has not 

properly considered new evidence, the Eleventh Circuit Court of 

Appeals has stated the following in an unpublished decision: 

Generally, a claimant is allowed to 

present new evidence at each stage of this 

administrative process. See 20 C.F.R. §§ 

404.900(b), 416.1470(b); Ingram v. Comm’s of 

Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th

Cir. 2007). The Appeals Council has the 

discretion not to review the ALJ's denial of 

benefits. 20 C.F.R. §§ 404.970(b, 

416.1470(b). However, the Appeals Council 

must consider “new and material evidence” 

that “relates to the period on or before the 

date of the administrative law judge hearing 

decision” and must review the case if “the 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 22 of 25
23

administrative law judge's action, findings, 

or conclusion is contrary to the weight of 

the evidence currently of record.” Id. The 

new evidence is material, and thus warrants 

a remand, if “there is a reasonable 

possibility that the new evidence would 

change the administrative outcome.” Hyde v. 

Bowen, 823 F.2d 456, 459 (11th Cir. 1987). 

When a claimant properly presents new 

evidence, and the Appeals Council denies 

review, the Appeals Council must show in its 

written denial that it has adequately 

evaluated the new evidence. Epps v. Harris, 

624 F.2d 1267, 1273 (5th Cir. 1980). If the 

Appeals Council merely “perfunctorily adhere 

[s]” to the ALJ's decision, the 

Commissioner's findings are not supported by 

substantial evidence and we must remand “for 

a determination of [the claimant's] 

disability eligibility reached on the total 

record.” Id.

Flowers v. Commissioner of Social Security, 441 Fed.Appx. 735, 

745 (11th Cir. 2011).

In this action, Ward submitted evidence for consideration 

the same day that the ALJ issued her determination. There was 

no finding by the Appeals Council that the evidence was 

improperly submitted (see Tr. 1-5); the Government has made no 

such argument either (see Doc. 14, pp. 11-12). The Court finds 

that the evidence was properly submitted.

As the Neuropsychologist’s report is dated before her 

decision was entered, and was filed on the date of that 

decision, there is no debate that the evidence “relates to the 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 23 of 25
24

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

So the question for the Court is whether “there is a reasonable 

possibility that the new evidence would change the 

administrative outcome.”

Goff’s examination included psychological testing, not 

previously performed, resulting in a mild mental retardation

diagnosis. The Court finds nowhere else in the record any 

reference to the possibility that Ward was mentally retarded; 

the psychological evaluations pre-dating Goff’s testing all 

suggested borderline intellectual functioning. Though Ward had 

not sought disability benefits on the basis of mental 

retardation, these test scores now raise the possibility of such 

a finding.

Goff also performed tests demonstrating decreased hand grip 

strength and dexterity bilaterally. The significance of this 

evidence is that it corroborates the findings of Dr. Simmons who 

also noted decreased grip strength, dexterity, and ROM issues. 

Simmons’s conclusions were rejected by the ALJ in favor of those 

of Dr. Robidoux; his examination makes no findings regarding 

Plaintiff’s grip strength (see Tr. 339-43). 

The Court finds that the evidence submitted by Goff is 

material. While the Court is well aware that it cannot reweigh 

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 24 of 25
25

the evidence of record, Dyer v. Barnhart, 395 F.3d 1206, 1210 

(11th Cir. 2005), the Court finds, under Flowers, that there is a 

reasonable possibility that the evidence submitted would have 

changed the administrative result. As the Appeals Council did 

not explain why this evidence would not have made any difference 

in the ALJ’s decision, the Court finds that the Council did not 

properly consider it. 

Based on review of the entire record, the Court finds that 

the Commissioner's decision is not supported by substantial evidence. Therefore, it is ORDERED that the action be REVERSED and 

that this action be REMANDED to the Social Security 

Administration for further administrative proceedings consistent 

with this opinion, to include, at a minimum, a supplemental 

hearing for the purpose of reviewing this newly-submitted 

evidence. Judgment will be entered by separate Order.

DONE this 29th day of June, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 2:14-cv-00515-M Document 21 Filed 06/29/15 Page 25 of 25