United States District Court, S.D. Alabama, Northern Division
F. BIVINS UNITED STATES MAGISTRATE JUDGE
Carol Tubbs (hereinafter “Plaintiff”), seeks
judicial review of a final decision of the Commissioner of
Social Security denying her claim for supplemental security
income under Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381, et seq. On October 25, 2016, the
parties consented to have the undersigned conduct any and all
proceedings in this case. (Doc. 24). 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 REVERSED and REMANDED for
further proceedings not inconsistent with this decision.
Procedural History 
filed her application for benefits on October 18, 2011,
alleging disability beginning September 1, 2011, based on
heart problems, high blood pressure, and anemia. (Tr. 137,
166, 171). Plaintiff's application was denied and upon
timely request, she was granted an administrative hearing
before Administrative Law Judge Frank Klinger (hereinafter
“ALJ”) on September 12, 2013. (Id. at
49). Plaintiff attended the hearing with her counsel and
provided testimony related to her claims. (Id. at
52). A vocational expert (“VE”) also appeared at
the hearing and provided testimony. (Id. at 62). On
March 10, 2014, the ALJ issued an unfavorable decision
finding that Plaintiff is not disabled. (Id. at
24-38). The Appeals Council denied Plaintiff's request
for review on September 24, 2015. (Id. at 1-2).
Therefore, the ALJ's decision dated March 10, 2014,
became the final decision of the Commissioner.
exhausted her administrative remedies, Plaintiff timely filed
the present civil action. (Doc. 1). The parties waived oral
argument on October 25, 2016 (Doc. 23) 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
Issues on Appeal
Whether substantial evidence supports the ALJ's finding
that Plaintiff has the severe impairment of “probable
borderline intellectual functioning?”
Whether the ALJ erred in failing to find that Plaintiff meets
Whether substantial evidence supports the ALJ's
assignment of “little weight” to the opinion of
examining licensed professional counselor, Dr. Donald W.
was born on May 11, 1964, and was forty-nine years of age at
the time of her administrative hearing on September 12, 2013.
(Tr. 53, 166). Plaintiff graduated from high school attending
special education classes. (Id. at 53-54).
last worked in 2005 as a scaler in a poultry processing
plant. (Id. at 172). Her past work also
includes being a cook/dishwasher in a restaurant.
(Id.). None of Plaintiff's past work qualifies
as substantial gainful activity. (Id. at 36, 62). In
her Disability Report submitted to the Agency, Plaintiff
stated that she has not been able to work since September 1,
2011, due to heart problems, high blood pressure, and anemia.
(Id. at 166, 171).
Standard of Review
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.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. 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 ...