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Hollis v. Colvin

United States District Court, S.D. Alabama, Northern Division

July 20, 2015

TONY HOLLIS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER

SONJA F. BIVINS, Magistrate Judge.

Plaintiff Tony Hollis (hereinafter "Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. On May 14, 2015, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 20). 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.

I. Procedural History

Plaintiff protectively filed an application for a period of disability and disability insurance benefits on February 22, 2011. (Tr. 157). Plaintiff alleged that he has been disabled since December 15, 2009, due to "[two] ruptured discs in lower back/fusion in lower back."[1] (Id. at 157, 161). Plaintiff did not allege any intellectual limitations in his disability application, nor did he claim any intellectual limitations at his hearing. (Id. at 52-61, 161, 164).

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 December 18, 2012. (Id. at 45, 78). Plaintiff attended the hearing with his counsel and provided testimony related to his physical impairments. (Id.). A vocational expert ("VE") also appeared at the hearing and provided testimony. (Id.). Following the hearing on December 18, 2012, Plaintiff filed a motion requesting that the ALJ order a consultative mental examination for the purpose of performing IQ testing. (Id. at 236). On January 14, 2013, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. In addition, the ALJ denied Plaintiff's request for a consultative mental examination on the grounds that there was no evidence that Plaintiff was mentally retarded, and to the contrary, that the evidence showed that Plaintiff's adaptive functioning was well above that of a person with mild mental retardation. (Id. at 37-38, 40). On March 14, 2013, Plaintiff requested that the Appeals Council consider a report obtained from Dr. Donald Blanton, Ph.D., related to a mental status evaluation and IQ testing conducted by Dr. Blanton on February 12, 2013. (Id. at 18-19). The Appeals Council denied Plaintiff's request for review, finding that the report did not provide a basis for changing the ALJ's decision. (Id. at 1-2). Therefore, the ALJ's decision dated January 14, 2013, became the final decision of the Commissioner.

Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). The parties waived oral argument on May 14, 2015 (Doc. 21), 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 failing to fully and fairly develop the record by denying Plaintiff's motion for a consultative mental examination to determine Plaintiff's intellectual functioning?

2. Whether the Appeals Council erred in failing to admit into the record the report of Plaintiff's examining psychologist, Dr. Donald Blanton, Ph.D.?

III. Factual Background

Plaintiff was born on February 20, 1965, and was forty-seven years of age at the time of his administrative hearing on December 18, 2012. (Tr. 157). Plaintiff testified that he dropped out of school after the eleventh grade. (Id. at 48, 231). Plaintiff's school records reflect that he was enrolled in regular classes while in school and that he repeated the first and eleventh grades. (Id. at 48-49, 231). Plaintiff did not pass the high school graduation examination and did not receive a high school diploma. (Id. at 48, 235).

Plaintiff testified that he cannot read a newspaper, and he needed help filling out job applications. (Id. at 55, 56-57). He has a commercial driver's license, which he obtained after passing the oral commercial driving test. Plaintiff failed the written commercial driving test four times. (Id. at 49-50).

According to Plaintiff's Disability Report, he last worked from 2007 to 2009 as a delivery truck driver for a welding company. Prior to that, he worked as a delivery truck driver for a lumber company in 2006 and as a delivery truck driver for a gas company for approximately fourteen years from 1990 to 2004.[2] (Id. at 45, 49-50, 162, 167). Plaintiff also worked at a truck rental company in 2007, washing and cleaning trucks. (Id. at 162).

Plaintiff testified that he quit working in December 2009 after having a motor vehicle accident. Plaintiff stated that he could no longer perform the lifting requirements of his job after the accident. (Id. at 51-52). According to Plaintiff, as a result of the accident, he underwent fusion surgery on his back, physical therapy, and epidural injections for pain. (Id. at 52-54). His current medications include amitriptyline (for sleep), Fluoxetine (for nerves), and Hydrocodone and Tramadol (for pain). (Id. at 54, 58).

Plaintiff testified that he lives with his wife and three children, that he sleeps approximately twelve to fifteen hours a day, and that he cannot lift two pounds.[3] (Id. at 59-60). In his Function Report, Plaintiff stated that he can take care of his personal needs such as feeding, shaving, and showering but sometimes needs help using the toilet and putting on his clothes. (Id. at 189, 193). He walks every day ...


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