Collins v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION Signed by Magistrate Judge John E Ott on 9/8/15. (SAC )

FILED
2015 Sep-08 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICK JIBREEL COLLINS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 2:14-cv-01429-JEO

MEMORANDUM OPINION
Plaintiff Patrick Jibrell Collins brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying his application for disability insurance benefits.
(Doc. 1).1 This case has been assigned to the undersigned United States Magistrate
Judge pursuant to this court’s general order of reference. The parties have consented
to the jurisdiction of this court for the disposition of the matter. (Doc. 9). See 28
U.S.C. § 636(c), FED. R. CIV. P. 73(a). Upon review of the record and the relevant
law, the undersigned finds that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Plaintiff filed his application for disability insurance benefits under Title II of

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References herein to “Doc. ___” are to the electronic numbers at the top of each
pleading that are assigned by the Clerk of the Court.

the Social Security Act on November 15, 2010, alleging that he became disabled
beginning October 15, 2010. (R. 135).2 On October 20, 2012, following a hearing,
an Administrative Law Judge (“ALJ”) denied Plaintiff’s application, concluding that
he is not disabled under the Social Security Act. (R. 29). The Appeals Council
declined to grant review of the ALJ’s decision. (R. 1-4). Plaintiff then field this
action for judicial review pursuant to § 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g). (Doc. 1).
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is
a narrow one. “Our review of the Commissioner’s decision is limited to an inquiry
into whether there is substantial evidence to support the findings of the Commissioner,
and whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir.
1988). The plaintiff must demonstrate that the decision of the Commissioner is not
supported by substantial evidence. See, e.g., Allen v. Schweiker, 642 F.2d 799 (5th
Cir. 1981). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
2

References herein to “R. ___” are to the administrative record located at Document 5
(Answer of the Commissioner).
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quotations and citations omitted). The court gives deference to factual findings and
reviews questions of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991). The court “may not decide the facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner], rather [it] must scrutinize the
record as a whole to determine if the decision reached is reasonable and supported by
substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1982)) (internal
quotations and other citations omitted); see also Dyer v. Barnhart, 395 F. 3d 1206,
1210 (11th Cir. 2005).

As noted above, conclusions of law made by the

Commissioner are reviewed de novo. Cornelius, 936 F.2d at 1145. Accordingly, “[n]o
… presumption of validity attaches to the [Commissioner’s] conclusions of law.”
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show “the inability to engage

in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is “an
impairment that results from anatomical, physiological, or psychological

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abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3). Plaintiff bears the burden of proving
that he is disabled, and he is responsible for producing evidence in support of such a
claim. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
Determination of disability under the Social Security Act requires a five step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must determine
in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity, age,
education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014) (citing 20
C.F.R. § 404.1520(a)(4)). “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). “Once a
finding is made that a claimant cannot return to prior work the burden shifts to the
Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d 1553,
1559 (11th Cir. 1995) (citation omitted). The Commissioner must further show that

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such work exists in the national economy in significant numbers. Id.; Evans, 551 F.
App’x at 524.
IV. DISCUSSION
A. Facts
Plaintiff was 40 years old at the time of the ALJ’s decision. He is a Gulf War
United States Army veteran. He has a high school education and past relevant work
history as a custodian and military mechanic. (R. 28). He has not engaged in
substantial gainful activity (“SGA”) since October 15, 2010.
Following an administrative hearing, the ALJ found that Plaintiff has severe
impairments of degenerative disc disease, degenerative joint disease, and obesity. (R.
21). He also has non-severe impairments of hypertension, hidradenitis suppurativa,
sleep apnea, furunculosis, plantar facial fibromatosis, Bell’s palsy, chronic obstructive
pulmonary disease, gastroesophageal reflux disease, hyperlipidemia, wrist problems
including carpal tunnel syndrome, left thumb pain and crepitus, and “various
psychological disorders such as” depression, anxiety disorder and dysthymic disorder.
(R. 21-22). He also fractured his right foot in 1996 and has a history of persistent
pain. (R. 406). Plaintiff receives a 30% military service disability benefit from
Veteran’s Affairs (“VA”). It is premised upon “lumbosacral or cervical strain 20%
and superficial scars 10%.” (Doc. 10 at 5; R. 363). An additional 10% disability was

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awarded in November 2012, retroactive to January 11, 2006, “for residuals of [his
1996] right ankle fracture.” (R. 1639-41).
The ALJ determined that Plaintiff had the residual functional capacity (“RFC”)
to perform light work with additional postural and environmental limitations. (R. 23).
He also found that Plaintiff was unable to perform his past relevant work, but could
work as a cashier, sales attendant, and cleaner. (R. 29). Finally, the ALJ determined
that Plaintiff was not disabled. (Id.)
B. Plaintiff’s Claims
Plaintiff initially asserts in conlusory fashion that the ALJ’s “severe impairment
and RFC findings are not based on substantial evidence.” (Doc. 10 at 6). Under that
heading, he argues that the ALJ (1) failed to “explain how an individual who cannot
perform past work as a custodian ... and who is limited to occasional stooping ... could
possibly work as a cleaner”; (2) failed to adequately consider his global assessment
of functioning (“GAF”) scores to determine his RFC; (3) failed to properly credit his
subjective complaints; and (4) failed to properly weigh the disability determinations
of the VA and the Postal Service. (Id. at 6-8). He also asserts elsewhere in his brief
that the Appeals Council failed to consider his new evidence concerning the VA’s
decision to award him an additional 10% rating concerning his right ankle fracture.
(Id. at 8).

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1.

The ALJ’s Findings on Plaintiff’s “Severe Impairments” and
RFC

Plaintiff first argues that the ALJ’s severe impairment findings are not based
on substantial evidence. (Id. at 6). The Commissioner retorts that this argument is
waived because Plaintiff offered no other argument or evidence in support of this
claim. (Doc. 11 at 3-4). The court agrees. Plaintiff’s failure to offer argument or
evidence in support of this claim constitutes a waiver of the same.

See Rowe v.

Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (in the absence of any argument,
an issue is deemed abandoned); see also United States v. Wilmore, — F. App’x —,
2015 WL 4910496, *1 n.1 (11th Cir. Aug. 18, 2015) (where the defendant makes no
arguments in support of statement, the argument is deemed abandoned); Knight v.
Thompson, — F. App’x —, 2015 WL 4638871, *10 (11th Cir. Aug. 5, 2015) (issues
mentioned in passing but without supporting argument or discussion are abandoned)
(citing Rowe)); Coon v. United States, 607 F. App’x 849, 855 (11th Cir. Apr. 3, 2015)
(movant’s failure to cite relevant authority and elaborate as to what was error, and his
advancement of claim in a “generally perfunctory ... manner” constituted a waiver of
the argument).
Additionally, this claim is without merit on substantive grounds. To the extent
that Plaintiff is arguing that the ALJ’s determination of his severe impairments is
erroneous, any such error is harmless. (Doc. 10 at 6). “The finding of any severe
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impairment, based on either a single impairment or a combination of impairments, is
enough to satisfy step two because once the ALJ proceeds beyond step two, he is
required to consider the claimant’s entire medical condition, including impairments
the ALJ determined were not severe.” Burgin v. Comm’r of Soc. Sec., 420 F. App’x
901, 902 (11th Cir. 2011). Here the ALJ found multiple severe impairments at step
two and proceeded to the remaining considerations.
To the extent Plaintiff is arguing that the ALJ did not assess the combined effect
of his impairments, the record indicates otherwise. (Doc. 10 at 6). At step three, the
ALJ found that Plaintiff did “not have an impairment or combination of impairments
that meets or medically equals the severity” of a listed impairment.3 (R. 22). This is
sufficient to show that he properly considered all of Plaintiff’s impairments during the
evaluation process. Id. at 902-03; Wilson, 284 F.3d at 1224.
2.

Work as a Cleaner

In minimalist fashion, Plaintiff argues that “[t]he ALJ did not explain how an
individual who cannot perform past work as a custodian (R. 28) and who is limited
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More specifically, he stated:

For each of the claimant’s impairments, whether considered individually or in
combination, the medical evidence does not document listing-level severity and
no acceptable medical source has mentioned findings equivalent in severity to the
criteria of any listed impairment.
(R. 22).
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to occasional stooping (R. 23) could possibly work as a cleaner (R. 29).” (Doc. 10 at
7). This claim does not support the grant of any relief under the circumstances.
The ALJ presented, as is required, a comprehensive hypothetical to the VE
during the hearing that included limitations that were consistent with Plaintiff’s RFC.
(R. 23, 62). See Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) (the ALJ must
pose a hypothetical question which comprises all of the claimant’s impairments).
Specifically, the VE testified that Plaintiff court work as a cashier, sales attendant, or
cleaner. (R. 62). He also testified that over one million of these jobs existed in the
national economy. (Id.)
To the extent Plaintiff argues the ALJ did not adequately explain how he could
work as a cleaner, Plaintiff fails to note that the VE testified that his past work as a
custodian was classified as medium work while the cleaner job is classified as light
work, which is consistent with his RFC. (R. 23, 61-62). Additionally, Plaintiff has
offered no challenge to the determination that he was able to work as a cashier or sales
attendant. Thus, this claim is without merit.
3.

Failure to Consider GAF Scores Regarding the RFC

Plaintiff next argues that the ALJ failed “to recognize that SSA does find GAFs
relevant to a consideration of RFC.”4 (Doc. 10 at 7 (citing 65 Fed. Reg. 50746 Aug.
4

In Lacina v. Comm’r, Soc. Sec. Admin., 606 F. App’x 520 (11th Cir. 2015): the court

stated:
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21, 2000)). The Commissioner disagrees, stating that the Agency has not endorsed
the GAF scale for disability programs. (Doc. 11 at 5 (citing 65 Fed. Reg. 50746,
50764-65 Aug. 21, 2000)). She also notes that Plaintiff’s GAF scores were consistent
during the time he was working and after he became disabled. (Id. at 5-6).
It is evident that the Commissioner has not endorsed the use of GAF scores.
To the contrary, the Eleventh Circuit has recently stated, “At the outset, it is important
to note that the Commissioner has indicated that GAF scores have no ‘direct
correlation to the severity requirements of the mental disorders listings.’ ” Lacina, 606
F. App’x at 527 (citing 65 Fed. Reg. 50746, 50764-65). See also Wright v. Colvin,

GAF is a standard measurement of an individual’s overall functioning level “with
respect only to psychological, social and occupational functioning.” American
Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, at
32 (4th ed. 1994) (DSM–IV). A GAF of 31-40 indicates some impairment in
reality testing or communication or major impairment in several areas, such as
work or school, famil[y] relations, judgment, thinking, or mood. Id. A score
between 41 and 50 indicates serious symptoms, such as suicidal ideation, serious
impairment in social, occupational or school functioning. Id. A score between 51
and 60 indicates moderate symptoms, such as occasional panic attacks or
moderate difficulty in social, occupational or school functioning. Id.
Lacina, 606 F. App’x at 523, n.2.
The RFC is an assessment of the extent to which a claimant’s impairments
may affect her capacity to work. 20 C.F.R. §§ 404.1545(a)(5), 416.945(a)(5).
The RFC evaluation is used in the fourth and fifth steps of the sequential process
to determine whether the claimant can perform past work and, if not, whether the
claimant can perform other work in the national economy. Id.
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 613 (11th Cir. 2015).
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789 F.3d 847, 855 (8th Cir. 2015) (“65 Fed. Reg. 50746, 50764–65 (“[GAF scores]
do[ ] not have a direct correlation to the severity requirements in our mental disorders
listings.”)). In Thornton, the court noted, “As the Sixth Circuit has observed, GAF
scores may be helpful in formulating a claimant’s RFC, but are not essential to the
RFC’s accuracy, and an ALJ’s failure to describe GAF scores does not render the
ALJ’s RFC assessment inaccurate.” Thornton, 597 F. App’x at 613 (citing Howard
v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002)).
In this case, the ALJ noted the GAF scores in the record, but gave them little
weight due to the fact that they simply “are snapshots of an individual’s adaptive skills
at a moment in time; they do not necessarily reflect a claimant’s ongoing functional
ability or correspond to any regulatory measure of severity.” (R. 27). Plaintiff argues
that his GAF scores in the 50s indicate “at least a moderate effect on functioning
(DSM-IV) [that] would reasonably affect interaction at least with the public in the
performance of duties of sales attendant.” (Doc. 10 at 7). However, the medical
records show that Plaintiff’s GAF scores were relatively consistent while he was
working with the Postal Service as a labor custodian and after the purported disability
onset date in October 2010. (Compare R. 391, 412, 457-58, 494-95, 566, 600, 630,
703, 716, 764, 768 & 1605). The scores do not demonstrate that Plaintiff was
disabled or had additional functional limitations not accounted for by the ALJ. To the

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contrary, they demonstrate that while Plaintiff’s scores were in the 50s and 60s, he
was able to maintain his work with the Postal Service and reasonably could be
expected to do so with similar scores after the onset date. There is no error in the
record concerning this claim.
4.

Failure to Properly Evaluate Subjective Complaints

Plaintiff next argues that the ALJ did not properly evaluate and credit his
subjective complaints. (Doc. 10 at 7). The Commissioner retorts that the argument
is meritless. (Doc. 11 at 6).
This claim is without merit for a number of reasons. First, Plaintiff fails to
articulate how the ALJ failed to adequately evaluate his subjective complaints.
Second, an ALJ is charged with making credibility choices. Foote v. Chater, 67 F. 3d
1553, 1562 (11th Cir. 1995) (recognizing that the ALJ may make such choices). He
is not required to accept a claimant’s subjective complaints of pain and may properly
consider his credibility while assessing whether he is disabled. Wilson, 284 F.3d at
1225-26. “If the ALJ discredits subjective testimony, he must articulate explicit and
adequate reasons for doing so.” Id. at 1225; Bellew v. Acting Com’r of Soc. Sec., 605
F. App’x 917, 928 (11th Cir. May 6, 2015).

Here, the ALJ did determine that

Plaintiff’s subjective complaints were not entirely credible and he articulated specific

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reasons for that determination.5 (See R. 23-28). By way of example, the ALJ stated,
“While there is empirical evidence of medical impairments, the claimant’s relatively
modest examination results undermine his overall credibility with respect to the
alleged severity of his symptoms.” (R. 25; see also R. 42-44, 288-89, 291, 315, 842,
873-74, 967, 1010, 1072, 1252, 1285 & 1604). Immediately thereafter, the ALJ
provided specific examples of where the objective medical evidence did not support
Plaintiff’s complaints. (Id.) Additionally, the ALJ noted Plaintiff’s conservative
medical treatment history and that his symptoms were managed by medication. (R.
844-45, 847, 1248, 1430). The ALJ also noted, “The opinions of the claimant are not
fully credible, for a variety of reasons.” (R. 27). Again, immediately after that
statement, the ALJ noted specific examples of Plaintiff’s noncompliance with
recommended courses of treatment, his inconsistency in taking his medication, his
unwillingness to participate in available weight loss programs, and his ability to do
basic activities. (Id.) Finally, the ALJ noted that some of Plaintiffs statements are
indicative of someone who is not disabled. For example, Plaintiff stated that he was
considering “going back to school” and that he was thinking about “starting his own

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“When evaluating a claimant’s subjective symptoms, the ALJ must consider such things
as: (1) the claimant’s daily activities, (2) the nature and intensity of pain and other symptoms, (3)
precipitating and aggravating factors, (4) effects of medications, and (5) treatment or measures
taken by the claimant for relief of symptoms. See 20 C.F.R. § 404.1529(c)(3).” Bellew, 605 F.
App’x at 928.
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business” because he “does not want to work for anyone ever again.” (R. 27, 1161 &
1604).
5.

Failure to Properly Weigh the VA and the Postal Service
Disability Determinations

Plaintiff next argues that the ALJ should have assigned more weight to the other
agency determinations that he was disabled. (Doc. 10 at 7-8). The beginning point
for this discussion is the fact that the determination of another governmental agency
that a claimant is disabled under that agency’s rules is not binding on the
Commissioner. See 20 C.F. R. § 404.1504;6 SSR 06-03P, 2006 WL 2329939, at *67;7 see also Bloodsworth v. Heckler, 703 F2d 1233, 1241 (11th Cir. 1983) (“The
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20 C.F.R. § 404.1504 provides:

[a] decision by any nongovernmental agency or any other governmental agency
about whether you are disabled or blind is based on its rules and is not our
decision about whether you are disabled or blind. We must make a disability or
blindness determination based on social security law. Therefore, a determination
made by another agency [e.g., Workers’ Compensation, the Department of
Veterans Affairs, or an insurance company] that you are disabled or blind is not
binding on us.
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SSR 06-03P provides, in pertinent part:

Because the ultimate responsibility for determining whether an individual is
disabled under Social Security law rests with the Commissioner, we are not
bound by disability decisions by other governmental and nongovernmental
agencies. In addition, because other agencies may apply different rules and
standards than we do for determining whether an individual is disabled, this may
limit the relevance of a determination of disability made by another agency.
However, the adjudicator should explain the consideration given to these
decisions in the notice of decision for hearing cases and in the case record for
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findings of disability by another agency, although not binding on the Secretary, are
entitled to great weight.”).8
In the present case, the ALJ considered Plaintiff’s VA disability rating and his
medical retirement from the Postal Service and concluded that they were not binding.
(R. 26). In assessing the determinations, the ALJ noted that other evidence, including
a mediator’s suggestion in a child support matter involving Plaintiff, indicated that
Plaintiff voluntarily left his job and was not actually disabled. (Id.) Although the
mediator’s opinion was given “little weight,” the ALJ also noted again that there was

initial and reconsideration cases.
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In Pearson v. Astrue, 271 F. App’x 979 (11th Cir. 2008), the court affirmed a finding
that a claimant did not qualify for Social Security benefits despite the fact that the VA found he
was totally disabled. The court’s discussion in that case is instructive:
The record supports the conclusion by the administrative law judge that,
although Pearson received a total disability rating by the Veterans Administration,
he did not qualify for Social Security benefits. Walker v. Bowen, 826 F.2d 996,
999 (11th Cir. 1987). The Veterans Administration concluded that Pearson was
totally disabled due to a bipolar disorder, low back pain, and hypertension. The
rating was awarded based on the finding by the Administration that Pearson had
an “impairment of mind or body which [was] sufficient to render it[ ] impossible
for the average person to follow a substantially gainful occupation.” 38 C.F.R. §
3.340(a)(1). This rating, although given “great weight,” was not binding on the
administrative law judge. Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984).
The record establishes that the administrative law judge considered the rating in
his decision and correctly explained that a claimant had to satisfy a more stringent
standard to be found disabled under the Social Security Act. See 42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B).
Pearson, 271 F. App’x at 980-81.
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little “objective evidence” supporting Plaintiff’s claim of disability under the Social
Security Act. (Id.) Additionally, he noted that Plaintiff lacked the motivation to work
because of child support and income tax obligations. (R. 26-27). Plaintiff does not
dispute this evidence or these factual findings in this appeal with any contrary
evidence. Instead, he attempts to rely on his conclusory arguments. In sum, the court
finds the ALJ did consider the other agency determinations along with the other
evidence and properly determined that Plaintiff was not disabled.
6.

Failure to Consider New Evidence

Lastly, Plaintiff argues that the AC failed to consider his new evidence
concerning the VA’s decision to award him an additional 10% rating as to his right
ankle fracture. (Doc. 10 at 8). Specifically, Plaintiff asserts that the AC “ignored”
this evidence. (Id.) The Commissioner retorts that the AC “properly considered the
evidence, concluded that it did not provide as basis for changing the ALJ’s decision,
and denied Plaintiff’s Request for Review.” (Doc. 10 at 10 (citing R. 1-4)). Where
evidence not presented to the ALJ is presented the AC and the AC later denies review,
this court must consider the evidence to determine if the decision of the Commissioner
is supported by substantial evidence. Ingram v. Barnhart, 496 F.3d 1253, 1262, 126567 (11th Cir. 2007).
To the extent Plaintiff argues that the Commissioner “ignored” his evidence,

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the court finds otherwise. The evidence was listed on the Exhibits List. (R. 4 & 5).
The decision specifically stated that the AC considered “the additional evidence
listed.” (R. 1). That is all that is required. See Mitchell v. Comm’r, Soc. Sec. Admin.,
771 F.3d 780, 785 (11th Cir. 2014) (AC is not required to provide a detailed
explanation of a claimant’s new evidence when it denies a petition for review.).
The question for the undersigned is whether the record, including the “new
evidence,” supports the Commissioner’s decision. Stated another way, “when a
claimant properly presents new evidence to the Appeals Council [but the Appeals
Council denies review], a reviewing court must consider whether that new evidence
renders the denial of benefits erroneous.” Beavers v. Comm’r, Soc. Sec. Admin., 601
F. App’x 818, 822 (11th Cir. 2015) (quoting Ingram, 496 F.3d at 1262)).
The record reveals that while the additional 10% disability rating for Plaintiff’s
right ankle fracture (R. 1639) is noteworthy, it is not dispositive. It must be
considered with the remaining evidence in the record. The additional evidence
includes medical records showing that in December 2009, an x-ray of Plaintiff’s right
foot showed no fractures, dislocations, or significant degenerative changes and
unremarkable soft tissue. (R. 291). His physical examination notes for the same
month demonstrate that Plaintiff could walk over .25 miles to one mile, that his
responsiveness to medication was good without side effects, and that his gait and

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balance were normal. (R. 844-47). As late as October 2011, he reported only
moderate difficulty walking. (R. 1246-48). Other physical examinations between
October 13, 2010 and September 12, 2012, reveal that he had 5/5 muscle strength in
his right ankle and foot (R. 315, 873-74, 1072 & 1252), that he ambulated with a
steady or normal gait (R. 425, 1010, 1072 & 1252), and that he ambulated without an
assistive device (R. 316, 1028 & 1575).
Additionally, the court cannot ignore Plaintiff’s work history following the foot
injury. He worked from 1996 to 1998 in the Army at a “heavy exertional” level and
from 2000 to 2010 at the “medium exertional” level as a custodian. (R. 61-62, 219).
In view of the foregoing evidence and the ALJ’s evaluation of the same, the
undersigned finds that Plaintiff has not demonstrated that the decision of the
Commissioner is not supported by substantial evidence or that the “new evidence”
renders the decision erroneous.
V. CONCLUSION
The Commissioner determined that Plaintiff was not disabled under the Social
Security Act. For the reasons set forth above, the undersigned finds that the
Commissioner’s decision is due to be affirmed. An appropriate order will be entered
herewith.

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DATED, this the 8th day of September, 2015.

__________________________
JOHN E. OTT
Chief United States Magistrate Judge

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