Moore v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 2/26/15. (SAC )
2015 Feb-26 PM 04:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CORNELL PATRICK MOORE
CAROLYN W. COLVIN,
Commissioner of Social
CIVIL ACTION NO.
On December 3, 2010, Cornell Moore, the claimant, filed a Title II application for a
period of disability and disability insurance benefits, alleging disability beginning on July 21,
2008. (R. 15). He claimed inability to work because of his rheumatoid arthritis, degenerative
disc disease, back pain, and post traumatic stress disorder. (R. 165). The Commissioner denied
the claim on January 27, 2011. After the claimant filed a request for a hearing, the ALJ
conducted a hearing on July 12, 2012.
On August 16, 2012, the ALJ determined that the claimant was not disabled, as defined
by the Social Security Act, from July 21, 2008, his alleged onset date, to the time of the hearing.
(R. 16). On November 13, 2013, the Appeals Council denied the claimant’s request for review;
consequently the ALJ’s decision became the final decision of the Commissioner of the Social
Security Administration. (R. 1). The claimant exhausted administrative remedies, and this court
has jurisdiction pursuant to 42 U.S.C. §§ 405(g). For the reasons stated below, this court
AFFIRMS the decision of the Commissioner.
II. ISSUE PRESENTED
The issue before the court is whether substantial evidence supports that the ALJ, in
assessing the claimant’s physical and mental impairments, (1) properly conducted a residual
functional capacity assessment; (2) correctly applied the grid guidelines rather than relying on
vocational experts; and (3) appropriately discredited the claimant’s treating physician.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g);
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
“No...presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. However, this court does not review the Commissioner’s factual determinations de
novo. The court will affirm those factual determinations that are supported by substantial
evidence. “Substantial evidence” is “more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 402 (1971).
The court must keep in mind that opinions such as whether a claimant is disabled, the
nature and extent of a claimant’s residual functional capacity, and the application of vocational
factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a case; i.e., that
would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d).
Whether the claimant meets the listing and qualifies for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence,
or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the
significance of certain facts, the court has no power to reverse that finding as long as substantial
evidence exists in the record to support it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take account of evidence that detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
A person is entitled to disability benefits when the person cannot “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). To make
this determination, the Commissioner employs a five-step, sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. pt. 404, subpt. P, app. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20. C.F.R.§ § 404.1520, 416.920.
The ALJ must complete an RFC assessment of each claimant. Social Security Ruling
The RFC assessment must first identify the individual's functional
limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis, including the functions in
paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only
after that may RFC be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.
SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The ALJ must first assess the claimant's
functional limitations and restrictions and then express his functional limitations in terms of
exertional levels. See Castel v. Comm'r of Soc. Sec., 355 F. App'x 260, 263 (11th Cir.2009);
Freeman v. Barnhart, 220 F. App'x 957, 959–60 (11th Cir.2007); see also Bailey v. Astrue,
5:11–CV–3583–LSC, 2013 WL 531075 (N.D.Ala. Feb. 11, 2013).
The ALJ must consider all of the relevant evidence in assessing the claimant’s functional
medical history, medical signs and laboratory findings, the effects
of treatment, including limitations or restrictions imposed by the
mechanics of treatment (e.g., frequency of treatment, duration,
disruption to routine, side effects of medication), reports of daily
activities, lay evidence, recorded observations, medical source
statements, effects of symptoms, including pain, that are
reasonably attributed to a medically determinable impairment,
evidence from attempts to work, need for a structured living
environment, and work evaluations, if available.
SSR 96–8p at *4–*5. However, the ALJ is not required to “specifically refer to every piece of
evidence in his decision,” so long as the decision is sufficient to show that the ALJ considered
the claimant's medical condition as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir.2005); see also Castel, 355 F. App'x at 263.
The ALJ must clearly articulate the weight he affords to each item of evidence and the
reasons for the decision so that the reviewing court can determine whether his ultimate decision
is based upon substantial evidence. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981).
If the ALJ finds the claimant can do unlimited types of work at a given exertional level,
he does not need to use a vocational expert to determine what kinds of work a claimant can do on
the national level. The ALJ is able to use administrative notice and apply the grids, to determine
that work exists in significant numbers in the national economy that the claimant is capable of
completing. Welch v. Bowen, 854 F.2d 436, 438-39 (11th Cir. 1988); see also Ferguson v.
Schweiker, 641 F.2d 243, 248 (5th Cir. 1981). However, the ALJ may not rely on the grids if the
claimant has non-exertional impairments that limit basic working skills. Francis v. Heckler, 749
F.2d, 1562, 1566 (11th Cir. 1985); see also Broz v. Schweiker, 677 F.2d 1351, 1361 (11th Cir.
“‘Sedentary work’ involves lifting no more than ten pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a), [20 C.F.R. §
416.967(a)]. Social Security Ruling 83-10 elaborates on the definition of sedentary by providing
that “‘[o]ccasionally’means occurring from very little up to one-third of the time,” and that
“periods of standing or walking should generally total no more than about two hours of an eight
hour workday, and sitting should generally total approximately six hours of an eight hour
workday.” Kelly v. Apfel, 185 F.3d 1121, 1213 n.2 (11th Cir. 1999).
The Commissioner must accord the opinions of the treating physician substantial or
considerable weight, and, unless recounting good cause to the contrary, the commissioner cannot
discount the treating physician’s opinions. Lamb v. Brown, 847 F.2d 698, 703 (11th Cir. 1998).
Good cause exists if the physician’s opinion is not supported by evidence; the evidence supports
a contrary finding; the physician’s opinion is conclusory; or the physician’s opinion is
inconsistent with the doctor’s own medical records. Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004); 20 C.F.R. § 416.927.
The claimant was 46 years old at the time of the administrative hearing and had achieved
a high school education and completed three years of college. (R. 161, 166). He previously
worked as a warehouse worker, counselor, football coach, pallet stacker, and an engine repairer.
(R. 175-82). On appeal, the claimant disputed the ALJ’s determination about the claimant’s
residual functional capacity, the application of the grid guidelines rather than relying on
vocational experts, and the discrediting of the claimant’s treating physician.
On August 24, 2009, Dr. Fred Moss at Cooper Green Hospital conducted a lumbosacral
spinal exam on the claimant that revealed a shallow lumbosacral angel and lumbar lordosis,
which is curving of the lumbar region of the spine. (R. 251).
Dr. Willard Mosier treated the claimant on January 19, 2010 at Cooper Green Hospital.
Dr. Mosier noted that the claimant’s initial back injury occurred in 2003. However, that episode
began two to three weeks prior to the hospital visit. The claimant complained of back pain that
was severe, sharp, radiating, and burning pain; that was located in his lower back but radiated to
his left buttock, left calf, and left thigh; and that worsened with movement. His condition also
caused muscle spasms, numbness and tingling in his legs and feet, and lower back pain. Dr.
Mosier reported that the claimant grimaced during the exam, could not raise his leg straight
without severe pain, and could not sit or stand for prolonged periods of time. He prescribed
Toradol, Decadron, Predisone, Mobic, and Flexeril for the claimant’s back condition. Dr. Mosier
instructed the claimant to call him if his pain worsened, take the medications, and use heat and
cold compresses throughout the day. (R. 237-40).
On July 12, 2010, the claimant visited Dr. Shirley Jones at Cooper Green Hospital. He
reported back pain of a level six, and Dr. Jones denoted that the pain was in the claimant’s lower
back. On August 5, 2010, after more complaints of back pain, Dr. Jones referred him to the
urology clinic at Cooper Green Hospital. (R. 232).
On August 11, 2010 and September 13, 2010, the claimant sought treatment at the
Urology Clinic at Cooper Green Hospital for a hematuria1. The report indicated that he had
elevated blood pressure; lower back pain; hematuria; morbid obesity; degenerative disc disease;
eczema; and an erectile dysfunction. (R. 229). Dr. Shirley Jones ordered an MRI of the
claimant’s spine, specifically the lumbar region, from Cooper Green Hospital. The MRI results
The report did not include the name of the doctor at the urology clinic.
showed degenerative joint disease and lower back pain; degeneration of all his lumbosacral
disks, especially from L2-3 through L4-5, which showed a fifty percent loss of signal and height;
tender tears at L1, L2, L4-5; mild posterior bulges at the degenerated L2-3 through L4-5 discs;
joint arthropathy at L4-5; no spinal stenosis; and disk herniation around his abdomen. Dr. Jones
concluded that the degeneration of the discs was most prominent from L2-3 through L4-5; that he
had tears at multiple levels; and that no evidence existed of disc herniation or stenosis. (R. 252).
On September 22, 2010 the claimant visited Dr. Jones for his back pain, which he reported was a
level five. He said that he had experienced back pain since 2003 and that his pain was sharp;
went down his legs; was worst when cold; and made him weak and immobilized. Dr. Jones
created a treatment plan for the claimant and ordered him to stay active and lose weight by
walking, swimming, and eating healthy; taking anti-inflammatory medications; using a heating
pad or ice packs for his pain; participating in physical therapy for strength and proper lifting; and
continuing use of medicines for his muscles that other physicians prescribed. (R. 228).
On August 29, 2010, Dr. Raymond Broughton at Cooper Green Hospital treated the
claimant for his back pain. The claimant had sharp, lower back pain that began abruptly after a
vomiting episode. The pain radiated to both his hips and down his right leg. He expressed pain
from sitting, walking, or laying down; said that standing relieved his pain; and reported that he
felt no numbness, tingling, or weakness in either leg. He experienced tenderness to palpation and
was unable to lie flat or raise his leg. Pain medication only provided him temporary pain relief.
Dr. Broughton diagnosed him with a lumbar strain. (R. 241-45).
Physical therapist Herman Turner treated the claimant at Cooper Green Hospital from
October 2010 to November 2010. On October 11, 2010, the claimant reported that he suffered
from level five back pain that prevented him from standing, walking, and doing activities that
lasted for long periods of time. Mr. Turner noted that the claimant had difficulty walking and he
could only stand for forty minutes. He assessed that the claimant would benefit from a
progressive exercise program to enhance his mobility. Mr. Turner created a plan for the
claimant’s next eight to ten physical therapy sessions that included heating his back; electrical
stimulation; mobilization; core stabilization program; therapeutic exercise and activities; daily
living activities; patient education; endurance training and activity tolerance; and gait training.
The claimant continued to report back pain to Mr. Turner. Mr. Turner noted that the claimant’s
function, mobility, and core stabilization were improved but he still experienced pain. (R. 21926).
On December 7, 2010, J. Pugh completed a disability report on the claimant for the
Disability Determination Service. The claimant told Mr. Pugh that his rheumatoid arthritis, back
problems, and post traumatic stress disorder limited his ability to work. He reported that he was
6'1" and weighed 242 pounds; completed high school and three years of college; and stopped
working on July 21, 2008 because of his medical conditions. He listed employment from 2006 to
2008 as a coach, counselor, engine builder, machine set up man, and shipping clerk. He reported
that doctors at Cooper Green Hospital prescribed him Lorazepam, Prednisone, Sulfame
Thoxazole, Tizanidine, and Tramadone. The claimant also provided a brief history of his
medical treatment. From April 2002 to August 2003, Dr. Joe McWhorter at Forsyth Memorial
Hospital in Winston Salem, North Carolina, treated the claimant for back pain and ultimately
operated on the claimant’s back; from 2003 to 2007 doctors at Maplewood Family Practice in
Winston Salem, North Carolina treated him for back pain through medications and conducted an
MRI/CT scan of his back; and from July 2008 to December 2010 he visited Cooper Green
Hospital in Birmingham for his back pain. (R. 163-69).
The claimant answered a work history report for the Disability Determination Service on
December 20, 2010. He provided information about his prior employment at the Ebenezer
House, from February 2008 to July 2008, where he worked as a counselor; at USA Drugs, from
some point in 2007 to January 2008, as a warehouse worker; at Tyson Food from November
2007 to July 2007, where he worked as a warehouse worker; at Winston Salem Forsyth County
School from August 2005 to July 2007, as a football coach; at Piedmont Aviations, from May
2007 to July 2007, where he was an aircraft engine repairer; at Dell he was an Adecco Temp,
September 2006 to February 2007, as a warehouse worker; at Trader Publishing from August
2005 to September 2006, as a warehouse worker; at Adams Mark from August 2003 to February
2004, as a hotel worker; and at Tractor Supply Company from April 2000 to November 2002 as a
warehouse worker. All of his employment required him to walk or stand for seven to eight hours
a day. (R. 175-82).
On January 14, 2011, the claimant completed a drug and alcohol use questionnaire for the
Disability Determination Service. He explained that he did not use drugs and alcohol daily but
he drank vodka on the weekends; he did not drink for days or weeks at a time without stopping;
he recovered from his use of alcohol on the same day as he used alcohol; he experienced no
blackouts from drinking; drinking left no affect on his ability to function because he ate, paid
bills, cleaned his home, spoke on the phone, and maintained his appearance; and drinking did not
limit his ability to socialize with others and never caused him to lose a job. At age 27 he
underwent drug treatment at the Veteran’s Hospital in Salisbury, North Carolina. (R. 184-85).
On January 19, 2011, the claimant’s mother, Phoebe Moore, completed an adult third
party function report for the Disability Determination Service. Ms. Moore wrote that she saw the
claimant every day because they lived together. She indicated that the claimant did not care for
another person or animal. Before his back pain, Ms. Moore wrote that the claimant could work,
run, play sports, and walk; however, after the injury he could not squat or get up easily. She also
noted that the claimant’s pain caused him to have nightmares and disturbed his sleep. According
to Ms. Moore, the claimant needed no reminders to take care of his personal hygiene or take
medication; he prepared complete meals daily, but his condition caused him to sit down and take
breaks; he cleaned the home twice a week; he went outside the home; he transported himself by
walking or driving a car; he shopped in stores for groceries and clothes once a month; he
managed his personal finances; he watched television and read for hobbies; and he attended
church and sporting events once a week, but he did not like large crowds. (R. 186-90). Ms.
Moore indicated that the claimant’s back pain affected his ability to lift, squat, bend, reach, walk,
sit, kneel, climb stairs, and complete tasks. She reported that the claimant could walk half a
block before he needed to rest for a length of time determined by the severity of his pain. She
said the claimant could follow written and spoken instructions; got along well with authority
figures; had never been fired for problems interacting with supervisors or coworkers; and
sometimes handled stress and routine changes well, but sometimes he reacted poorly to
environmental stresses and changes. (R. 191-93).
On January 27, 2011, Gail F. Johnson completed a vocational rationale form for the
Alabama Disability Determination Service. She classified the claimant as a younger individual,
under the age of forty-nine, who had completed high school. Ms. Johnson indicated that the
claimant’s residual functional capacity limitations from his evaluation were consistent with his
relevant work as a counselor, DOT # 354.377-014. However, she left the rest of the form blank.
(194-96). On the same day, Ms. Johnson completed a report of contact form on the claimant.
She noted that a psychiatric review technique form was unnecessary because the claimant’s daily
living activities and his medical records indicated no mental impairment and he had no history of
mental health treatment or medication. The claimant alleged rheumatoid arthritis, back
problems, and post traumatic stress. She noted that the claimant lived with his family; cooked,
cleaned, and did other chores; drove; shopped; read and watched television; paid bills; needed no
reminders to do daily functions; maintained personal hygiene; and attended church. She found
he had problems lifting, squatting, bending, reaching, walking, climbing stairs, and completing
tasks. (R. 197)
T. Smith with the Disability Determination Service completed a prior filings disability
report on the claimant.2 The interviewer noted that the claimant’s last insurance date was
December 31, 2013. He also indicated that the claimant brought no medical evidence to the
office and the Disability Determination Service did not need to conduct capability development
The claimant also completed a disability report appeal.3 His last disability report was on
January 27, 2011. The claimant stated that around February 2011 his conditions worsened
because his back pain became more frequent and increased in severity. He claimed that he was
T. Smith did not include a date of completion of the disability report of prior filings.
The report did not contain the name of the interviewer nor the date of the interview.
more physically impaired since the previous report because it was harder for him to walk, stand,
or sit for any significant length of time. The claimant also provided the names of his medication
prescribed by physicians at Cooper Green Hospital: Lorazepam, Prednisone, Sulfame Toxazole,
Tizanidine, and Tramadone. He had not worked since his last disability report; he reported he
could “hardly stand or walk”; and he had no further training or education since his last disability
report nor participated in any vocational rehabilitation or employment services programs. (R.
201-05). He answered a work background questionnaire4. He listed the same work history as he
did on his work history report for the Disability Determination Service on December 20, 2010.
The claimant completed a recent medical treatment report where he stated that he had
neither been treated by a doctor or hospitalized after June 7, 2012. (R. 210). He provided a list of
his medications and the dates on which they were prescribed. In May 2004, Dr. Jones prescribed
Propoxy-N APAP and Tramadol for pain relief; she also prescribed Mobic, an anti-inflammatory
medication, in January 2010; she prescribed Predisone in January 2010, for anti-inflamation; she
prescribed Cyclobenzaprine, a muscle relaxer, in January 2010; and she prescribed Hydrocodone
in November 2011, for pain relief. The claimant also took Aleeve for back pain; used icy hot
patches for his back pain; and used muscle rub for his back pain. (R. 211).
On March 19, 2012, Dr. Marcia Lipinski completed a physical residual functional
capacity for the claimant. She diagnosed him with back pain, but the claimant initially
complained of rheumatoid arthritis and other back problems. Dr. Lipinski found, after reviewing
the medical records from Cooper Green Hospital, that the claimant could occasionally lift twenty
The report did not provide a date of completion.
pounds; frequently lift and carry ten pounds; stand or walk with normal breaks for six hours of an
eight hour workday; sit with normal breaks for six hours of a workday; and was unlimited in his
ability to push and pull things. The claimant experienced frequent limitations climbing stairs,
balancing, kneeling, crouching, and crawling. He was occasionally limited in climbing ladders,
ropes, or scaffolds and stooping. Dr. Lipinski indicated that the claimant’s medical record was
void of medical reports that outlined the claimant’s physical capabilities. (R. 256-64).
On June 1, 2012, Dr. Shirley Jones completed a physical capacities evaluation on the
claimant. Dr. Jones opined that the claimant could lift and carry twenty pounds occasionally and
ten pounds frequently; could sit and stand for four hours out of an eight hour workday; needed no
device to help him move; and would likely be absent three days a month from employment
because of his physical impairments. The claimant could never bend or stoop; he could rarely
climb stairs, balance, and reach overhead; he could occasionally push and pull with his arms or
legs; and he could frequently do gross manipulation, grasping, twisting, handling, do fine
manipulation with his fingers, and operate motor vehicles.5 (R. 274).
On the same day, Dr. Jones also completed a clinical pain assessment of the claimant’s
lower back pain. Dr. Jones determined that the claimant’s pain would distract him from
sufficiently performing daily work activities; his pain greatly increased with physical activities
and would cause him distraction from tasks and prevent him from completing activities; and his
pain medication would cause him to become drowsy, have difficulty concentrating, and limit his
overall work effectiveness. (R. 275).
According to the physical capacities evaluation, rare activities comprise one to five
percent of an eight hour workday; occasionally means six to thirty-three percent of a workday;
and frequently makes up thirty-four to sixty-six percent of an eight hour workday.
After the Commissioner denied the claimant’s request for disability, the claimant
requested, and received, a hearing before an ALJ on July 12, 2012. The claimant moved to
change his onset date from July 21, 2008 to September 21, 2010 because an MRI on that date
showed problems with his lumbar spine. He felt the September 21, 2010 date more accurately
represented the time he was disabled. (R. 29).
The claimant testified that he was born May 30, 1964 and graduated from high school.
He lived with his mother, and his children, who were under the age of 18, lived with their
The claimant reported that he had not worked since September 2010 and that his last
employment was at Interco Print where he stacked the feeding machines with ads and bundles,
drove forklifts, and set up the machines. The heaviest weight the claimant lifted at Interco Print
was fifty to sixty pounds. The claimant also said that he worked at Tractor Supply Company
where he pulled orders, drove a forklift, loaded trucks, and frequently lifted seventy-five to
eighty pounds. Lastly, he testified that he worked at Temporary Resources where he did temp
work for Dell Computers, which required him to unload computers, load trucks, and stack
pallets; he again frequently lifted fifty to sixty pounds. (R. 30-32).
The claimant testified that on a normal day he woke up; ate breakfast if his mother
cooked; showered; laid down until his back hurt in that position; sat up and watched television
until his back hurt from that position; walked around until his back hurt; and then laid down
again. He said that he had to alternate his body position throughout the day. The claimant said
that an accident at Tractor Supply Company injured his back in 2003. He had surgery and was
involved in a Worker’s Compensation claim that was settled prior to his disability claim. The
claimant testified that the surgery alleviated his pain immediately afterwards, but it later
worsened and concentrated in his lower back, hips, and legs. The claimant had to stand during
his testimony because of his pain. (R. 32-34).
The claimant reported that in 2010 he participated in ineffective physical therapy for his
back. He estimated that his pain averaged six to seven on a ten point pain scale. He said that he
took pain medication, primarily Lortab 7.5 daily, but his medication made him drowsy and
prevented him from driving. (R. 37). The claimant testified that he laid down, on average, twice
throughout the day for four to six hours during a typical eight hour workday. He said that he
could stand for fifteen to twenty minutes until his back started hurting; walk for two blocks
before resting; sit for twenty to thirty minutes on a good day; and carry a gallon of milk. Four or
five days a month, the claimant testified, he did not feel like getting out of bed because of his
pain. (R. 34-37).
The ALJ questioned the claimant about doctors’ recommendations for more surgery to
correct his back pain. The claimant responded that no doctors advised him to undergo more
operations. (R. 38).
Next, the ALJ questioned a vocational expert, Debra Civils, about the claimant’s work
history and potential. The vocational expert explained that the claimant had three past relevant
work experiences as a set making machine operator, a light, semiskilled position; pallet stacker,
heavy and semiskilled labor; and a warehouse worker, a medium, unskilled position. (R. 38-39).
Next, the ALJ asked Ms. Civils if the claimant’s exertional limitations, as assessed by Dr. Jones,
regarding lifting, standing, walking, and sitting were inconsistent with competitive employment.
The vocational expert responded that both his exertional and nonexertional limitations would not
impede sedentary, competitive employment. Ms. Civils articulated that employers allowed one
absence per month; if the claimant had more absences he could not sustain employment. The
ALJ asked the vocational expert to evaluate the claimant’s pain from a vocational standpoint.
She determined that pain higher than a level six would inhibit the claimant’s employment
because he would not be able to maintain attention, concentration, persistence, or pace to
complete tasks; however, if the claimant’s pain was below a level six, he could complete tasks
and maintain attention despite his pain. (R. 39-40).
The ALJ held that the claimant was not disabled based upon the meaning of the Social
Security Act from September 21, 2010 through the date of the decision. (R. 16). First, the ALJ
determined that the claimant met the insured status requirements of the Social Security Act
through December 31, 2013. Next, he recognized that the claimant had not engaged in
substantial, gainful employment since September 21, 2010. (R. 18). The ALJ found that the
claimant suffered the following limiting, severe impairments: degenerative disc disease at L2-L3
and L4-L5, facet joint arthopathy, and obesity.
The ALJ found that the claimant’s medical records did not support his allegations of
debilitating post traumatic stress and rheumatoid arthritis conditions. He determined that no
medical evidence existed at all that could explain those conditions. Further, the ALJ noted that
the claimant stated at the hearing that his back pain impaired his ability to work. (R. 18). Next,
the ALJ evaluated the claimant’s medical history and determined that it did not satisfy the
severity required by listing 1.04, spinal disorders. He also pointed out that none of the claimant’s
doctors or evaluators for the Disability Determination Service indicated that the claimant had
impairments that would satisfy the spinal disorder listing. (R. 18).
The ALJ found that the claimant had the residual functional capacity to perform a full
range of sedentary work. In making this determination, the ALJ first evaluated the claimant’s
testimony about his ability to work. The ALJ reported that the claimant testified that he
experienced back problems since his on-the-job injury that produced pain; that the pain was in
his lower back and went into a leg; and that he had to alternate positions from sitting, standing,
and lying down during the day. The ALJ also noted that the claimant stated he participated in
ineffective physical therapy in 2010; his pain was a six to seven out of ten; he laid down six
hours of the day; he could only stand for fifteen to twenty minutes at a time; he could walk only
two blocks at a time; he could only sit for twenty to thirty minutes at a time; he could not carry a
gallon of milk because of pain; he could not drive on his pain medication; and he could not get
up four to five days a month because of the pain. The ALJ opined that the claimant’s medically
determinable impairments could reasonably cause the claimant’s alleged symptoms. However,
the ALJ found that the claimant’s testimony about the intensity, persistence, and limiting effects
of the symptoms was not credible because it was inconsistent with the totality of his medical
The ALJ held that the medical evidence did not support the disabling nature of the
claimant’s testimony of pain and limitations. The ALJ acknowledged that the claimant’s MRI of
his lumbar spine showed abnormalities and that the physical therapy was ineffective. The ALJ
noted that the claimant’s treating physician, Dr. Shirley Jones, gave an opinion that was partially
supportive of the finding that the claimant could do a full range of sedentary work. However, he
found that the rest of Dr. Jones’ opinion about the claimant’s exertional abilities, which the
vocational expert used to determine that the claimant could do sedentary work, undermined the
claimant’s allegations that he experienced limitations in lifting, sitting, standing, and walking.
(R. 18-19). Further, the ALJ cited the vocational expert’s testimony that the claimant’s nonexertional limitations did not prevent him from doing sedentary work. The ALJ noted that Dr.
Jones assessed that the claimant’s probable absences and pain at work would preclude the
claimant from working; yet the ALJ determined that Dr. Jones’ treating notes did not support
those findings because the claimant only reported pain on September 21, 2011. Further, he
recalled that the vocational expert testified that someone can work at a pain level of six and not
be distracted by the amount of pain they experience. The ALJ also noted that on September 24,
2010, the claimant’s pain only registered as a five and the treatment plan, crafted by Dr. Jones,
included staying active, physical therapy, and heating or ice pads as needed. The ALJ evaluated
that on September 30, 2010, the claimant said that his pain was a two out of ten. Outside of Dr.
Jones’ reports, the ALJ found that the claimant’s medical record, as a whole, did not support his
claims. (R. 19).
The ALJ cited a function report from January 2011 that indicated that the claimant could
cook, clean, go outside, drive, shop, and attend church and sporting events as evidence that the
claimant could do sedentary activities without severe pain or needing to lie down for hours
during the day. (R. 20).
The ALJ evaluated whether the claimant’s obesity affected his ability to perform routine
movement and physical activity in a work environment. The ALJ concluded that the claimant
was obese at 6 feet 1 inch high weighing 240 to 255 pounds. The ALJ noted that the obesity did
not inhibit any of the claimant’s movements nor prevent him from participating in sedentary
activity. Thus, the ALJ determined that his obesity was not severe enough to interfere with the
claimant’s exertional abilities required for sedentary employment. (R. 20.)
The ALJ considered the opinions of all the healthcare professionals that interacted with
the claimant, as well as the claimants’ mother’s third party function report. The ALJ gave their
opinions great weight only to the extent that they were consistent with the totality of the medical
record. He gave Dr. Marcia Lipinski’s assessment little weight in light of Dr. Shirley Jones’
medical source statement because Dr. Jones was the claimant’s treating physician who saw him
multiple times. However, the ALJ gave part of Dr. Jones’ opinion little weight. He credited her
opinion about the claimant’s exertional capabilities, but discredited her statements relating to his
work absences and pain levels because her treating notes did not support her position. (R. 20-21).
The ALJ determined that the claimant could not perform any past relevant work because
the demands of those positions—a set making machine operator, a stacker, and a warehouse
worker—exceeded his residual functional capacity. He noted that the claimant was forty-six
years old and had a high school education. The ALJ opined that, based upon the claimant’s
residual functional capacity, the claimant could complete a full range of sedentary work. The
ALJ held that the claimant was not disabled based upon his age, education, work experience, and
residual functional capacity. (R. 22).
1. The use of a function-by-function assessment to determine the claimant’s RFC
The claimant argues that the ALJ’s decision should be remanded because he did not
include a function-by-function residual functional capacity evaluation. However, this court finds
that the ALJ acted within his bounds and properly determined the claimant’s RFC.
Social Security Ruling 96–8p dictates that an RFC assessment must first determine the
claimant’s functional limitations and then address the claimant’s ability to work on a functionby-function basis, according to the functions provided in 20 C.F.R § 404.1545 paragraphs (b),
(c), and (d) and § 416.945. The ALJ does not need to enumerate every piece of evidence or
function used in his determination, but rather must simply show that he considered the claimant’s
medical condition in totality. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.2005); see also
Castel, 355 F. App'x at 263. Once the ALJ has made that determination, the RFC may then be
expressed in terms of exertional levels such as sedentary, light, medium, heavy, and very heavy.
SSAR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see Castel v. Comm'r of Soc. Sec., 355 F.
App'x 260, 263 (11th Cir. 2009); Freeman v. Barnhart, 220 F. App'x 957, 959–60 (11th
Cir.2007); see also Bailey v. Astrue, 5:11–CV–3583–LSC, 2013 WL 531075 (N.D. Ala. Feb. 11,
The ALJ must clearly articulate the weight he affords to each item of evidence and the
reasons for the decision so that the reviewing court can determine whether his ultimate decision
is based upon substantial evidence. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981). So
long as the ALJ properly conducted an RFC analysis that weighed the totality of the claimant’s
medical records, this court may defer to the ALJ’s conclusions about the claimant’s residual
functional capacity. Castel, 355 F. App’x at 263. If an impairment is established, the ALJ must
consider all evidence about the intensity, persistence, and functionally limiting effects of pain or
other symptoms, in addition to the medical signs and laboratory findings in deciding the issue of
disability. Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). If the ALJ decides not to credit
such evidence, he must discredit it explicitly, and articulate explicit and adequate reasons for
doing so. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
A claimant can only do sedentary work if he cannot lift more than ten pounds at a time.
Sedentary work limits walking and standing to two hours of the workday; sitting to six hours of
the day; and lifting to up to ten pounds. 20 C.F.R. § 404.1567(a), [20 C.F.R. § 416.967(a)];
Kelly v. Apfel, 185 F.3d 1121, 1213 n.2 (11th Cir. 1999).
In this case, the ALJ conducted a functional analysis of the claimant’s RFC. The ALJ
began by evaluating the claimant’s testimony. He summarized the claimant’s testimony that he
alternated standing, sitting, and lying down during the day; injured his back at work; had surgery
on his back because of his injury; experienced pain in his lower back and leg; underwent
ineffective physical therapy; took pain medication for pain that averaged between a six to seven;
laid down for six hours out of an eight hour workday; stood for no more than fifteen to twenty
minutes during the day; sat for twenty to thirty minutes at a time; and aggravated his pain by
lifting an item such as a gallon of milk. This summary of the claimant’s testimony led the ALJ to
determine that the claimant’s medically determinable impairments could reasonably cause the
symptoms he alleged.
The ALJ properly determined that the claimant’s subjective statements about the
intensity, persistence, and limiting effects of his symptoms were inconsistent with his medical
record. The ALJ noted that an MRI conducted at Cooper Green Hospital showed that he had
degnerative disc disease and other back problems, according to Dr. Shirley Jones. (R. 19, 252).
He also observed that the claimant participated in physical therapy in 2010 at Cooper Green
Hospital that proved to be ineffective. (R. 19, 219-26). However, the ALJ evaluated that the
claimant’s treating physician, Dr. Shirley Jones at Cooper Green Hospital found that the claimant
could lift and carry ten pounds frequently; sit and stand for four hours; needed no ambulation
assistance; could occasionally push and pull; could frequently do gross manipulation; and operate
vehicles. (R. 274). The ALJ observed that the vocational expert testified that these abilities
would not prevent the claimant from participating in sedentary work activities. (R. 20, 39). He
cited the claimant’s visits to Dr. Jones where he reported pain levels of five and six. (R. 20, 232,
228). The ALJ noted that the vocational expert testified that a claimant with a pain level of six
or below could work. (R. 20, 41). This, coupled with the third party function report completed
by the claimnant’s mother, Phoebe Moore, which stated that the claimant could clean, cook,
drive, shop, and attend church, led the ALJ to determine that the claimant could do at least
sedentary work activities. (R. 20, 186-93).
The ALJ considered healthcare professionals’ opinions as well as the claimant’s mother’s
opinion. He gave little weight to the opinion of Dr. Marcia Lipinski, who found the claimant
could stand or walk for six hours a day, which he classified as light exertional work because she
only saw the claimant once. Dr. Jones, the claimant’s treating doctor, saw him multiple times.
(R. 20, 258). However, the ALJ gave part of Dr. Jones’ assessment little weight because her
opinion that the claimant’s pain and absences from work would prevent him from maintaining
employment were not supported by her treating records. (R. 21, 275).
From his analysis of the claimant’s medical record, the ALJ assessed the claimant’s
physical limitations. The ALJ evaluated the totality of the medical records, including two
functional reports issued by the claimant’s treating doctor and a state medical examiner. He then
determined, based upon the greater weight of the claimant’s medical history, that a sedentary
residual functional capacity would not aggravate the claimant’s pain and would allow him to
handle the side effects of his pain medication. (R. 21).
The court finds that the ALJ properly based his RFC assessment of the claimant’s ability
to do basic work functions, outlined by Social Security Ruling 96-8, on substantial evidence from
the entirety of the claimant’s medical records.
2. Application of the grid guidelines rather than relying on vocational expert testimony
The claimant also argues that the ALJ improperly excluded testimony from the vocational
expert from his opinion and improperly applied the grids to determine that a significant number
of jobs exist in the national economy that the claimant could perform. The court disagrees.
If the claimant is unable to do past relevant work, the ALJ must determine if the claimant
can perform other work. Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002); see also
Crayton v. Sullivan, 120 F.3d 1217, 1219 (11th Cir. 1997). The ALJ is not required to rely on a
vocational expert to outline employment opportunities if the claimant can complete a full range
of work at any exertional level. The ALJ can apply the grid guidelines to determine if the
claimant can do employment that exists in significant numbers in the national economy. Welch v.
Bowen, 854 F.2d 436, 438-39 (11th Cir. 1988); see also Ferguson v. Schweiker, 641 F.2d 243,
248 (5th Cir. 1981).
The court has verified that the ALJ’s RFC determination was appropriately assessed as a
full range of sedentary work because the ALJ considered the totality of the claimant’s medical
record and evaluated his doctors’ opinions. Thus, because the ALJ found that the claimant was
able to complete a full range of sedentary labor, with no non-exertional limitations, the ALJ can
use the grids rather than testimony from the vocational expert to determine work exists that the
claimant can do. The ALJ applied the residual functional capacity for a full range of sedentary
work and considered the claimant’s age, education, and work experience to Medical-Vocational
Rule 201.21 and found that the claimant was not disabled. (R. 22). Therefore, the claimant is
able to do any sedentary job without any sort of disabling limitation.
3. Discrediting the claimant’s treating physician
Finally, the claimant argues that the ALJ did not properly consider the opinion of the
claimant’s treating physician, Dr. Shirley Jones, about his work capabilities. The court disagrees
because substantial evidence supports the ALJ’s evaluation of Dr. Jones’ opinion.
The court’s limited review precludes reweighing evidence anew. Dyer, 395 F.3d at 1210.
Where the ALJ articulated specific reasons for failing to give the opinion of the treating
physician controlling weight and those reasons are supported by substantial evidence, no
reversible error occurs. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
The ALJ credited Dr. Jones’ opinion in part and discredited her opinion in part. He
credited her opinion surrounding the claimant’s exertional capabilities. However, the ALJ
discredited Dr. Jones’ evaluation regarding the claimant’s pain levels and absences from
potential future employment. He noted that Dr. Jones determined the claimant’s pain, at a level
six, would distract him from working and would cause him to frequently be absent from work.
The ALJ relied on vocational expert testimony that a pain level of six or less would not cause the
claimant to lose focus or become unable to work. Further, the ALJ observed that the treatment
plan Dr. Jones created for the claimant did not indicate that the claimant’s pain was debilitating
because it included staying active, using ice, and doing physical therapy. The ALJ correctly
determined that substantial evidence, particularly from Dr. Jones’ treating records and the
vocational expert’s testimony, did not support Dr. Jones’ opinion about the claimant’s pain and
For the reasons as stated, this court concludes that the decision of the Commissioner is
supported by substantial evidence and is to be AFFIRMED. The court will enter a separate Order
to that effect simultaneously.
DONE and ORDERED this 26th day of February, 2015.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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