Gossard v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 5/29/2015. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES H. GOSSARD,

:

Plaintiff,

:

vs.

:

CA 14-0395-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying his
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 19 & 20 (“In accordance with
provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States magistrate judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, and the
Commissioner’s brief, it is determined that the Commissioner’s decision denying
benefits should be reversed and remanded for further proceedings not inconsistent with
this decision.1

1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 19 & 20 (“An appeal from a
judgment entered by a magistrate judge shall be taken directly to the United States court of

(Continued)

Plaintiff alleges disability due to diabetes mellitus, obesity, personality disorder,
hypertension, hyperlipidemia, acute low back pain, bilateral degenerative arthritis of
the hips, and degenerative disc disease of the lumbar spine. The Administrative Law
Judge (ALJ) made the following relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2014.
2.
The claimant has not engaged in substantial gainful activity since
August 18, 2010, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
3.
The claimant has the following severe impairment: diabetes
mellitus and obesity (20 CFR 404.1520(c) and 416.920(c)).
The claimant’s medically determinable mental impairments of personality
disorder[] and substance addiction disorder, considered singly and in
combination, do not cause more than minimal limitation in the claimant’s
ability to perform basic mental work activities and are therefore not severe
impairments.
On October 17, 2011, Dr. Kenneth R. Starkey evaluated the claimant at the
request of the Social Security Administration. The claimant reported his
problem was “not being able to concentrate.” He said he loses his vision,
he thought due to his diabetes. He reported these intermittent problems
with concentration and visual acuity problems since October 2010 with
gradual worsening. He described vague problems with sleep and stress
that was due to tax and bankruptcy problems but not requiring formal
psychiatric treatment. He had a history of alcohol and marijuana
dependence prior to 1996 and what appeared to be a pervasive and
persisting pattern of grandiosity and disregard for/violation of the rights
of others. He can fee[d], bathe, groom and dress himself without
assistance. He can use a phone, count money, prepare meals, shop for
groceries and drive an auto without assistance. He completed the 12
grade in school, attending regular classes. He receives 10% serviceconnected disability compensation for hypertension. On exam, he was
able to focus and sustain attention without distraction from extraneous
stimuli. Estimated intellectual functioning was in the Average range. His
memory functions were intact. His mood was generally euthymic and his
affect was congruent with this mood. His insight and judgment appeared
th

appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
district court.”))

2

generally adequate. During the day, he washes the dishes, takes out the
trash, feeds his rooster and 2 cats, checks his blood sugar and prepares his
food. He works on the computer, vacuums, does the laundry, plays the
guitar, watches television, reads, goes to the grocery store and drugstore
and attends church three days a week. The impressions were alcohol
dependence—full remission per claimant; cannabis dependence—full
remission per claimant; personality disorder, nos—narcissistic and
antisocial traits; chronic leg pain; hypertension; diabetes mellitus and
hypercholesterolemia with a GAF of 68, indicating some mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in social,
occupational or school functioning (e.g., occasional truancy, or theft
within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships. Dr. Starkey stated that the
claimant’s ability to understand, remember and carry out simple/concrete
instructions appeared [well] from a psychological perspective. His ability
to work independently as opposed with close supervision also appeared
good. His ability to work with supervisors, co-workers and the general
public appeared adequate. His ability to deal with work pressures also
appeared adequate at the present time. The medical evidence of record
provided by the State agency was review[ed] and the findings were
considered in the overall assessment.
On May 9, 2012, records from VA Biloxi show in Exhibit 6F, page 14
through 16, the claimant was psychiatrically evaluated. He reported being
incarcerated several times, presumably as a result of behavioral
disturbance but did not wish to talk about the reasons for incarceration.
He admitted to a long history of being irritable. On Mental Status Exam,
his affect was anxious and his mood was described as “stressed.” His
thought process was often tangential. His speech was of normal volume
but modestly pressured and quite difficult to interrupt. There was no
evidence of psychosis.
On January 29, 2013, Mobile Veterans Administration personnel said the
claimant reported experiencing increasing mood fluctuations and
irritability, which he attributed to “stress.” On the mental status exam, he
was alert and oriented times 4. There was no involuntary movement
noted. Eye contact was good. Affect was anxious and he described his
mood as “stressed.” Thought process was goal-directed and speech was of
normal rate and volume. There was no evidence of psychosis. Acute risk
of suicidal behavior was considered low. He had not taken moodstabilizing medication for an extended period of time. He was willing to
try topiramate.
As for the opinion evidence, more weight is given to Dr. Starkey whose
opinions are consistent with his objective findings and with the claimant’s
activities of daily living. Dr. Starkey found only mild symptoms or mild
difficulty. This is consistent with his finding that the claimant was able to
focus and sustain attention without distraction from outside stimuli. His
mood was euthymic and his affect congruent with his mood. Insight and
3

judgment were adequate. The claimant’s four broad functional areas were
no more than mild. The VA records showed a diagnosis of bipolar
disorder. However, there is little evidence that he actually has bipolar
disorder, which consists of a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndrome. VA
records show the claimant’s mood was as he described it. Furthermore,
the claimant was not taking any medication at these visits. Although the
claimant reported not getting along with others, his activities of daily
living do not indicate that he has more than minimal mental limitations.
He attends church 2-3 times per week, goes grocery shopping, reads, pays
his own bills, writes pen pals, and engages in religious studies.
In making this finding, the undersigned has considered the four broad
functional areas set out in the disability regulations for evaluating mental
disorders and in section 12.00C of the Listing of Impairments. These four
broad functional areas are known as the “paragraph B” criteria.
The first functional area is activities of daily living. In this area, the
claimant has no limitation. He mows the grass and uses a wheelbarrow to
clean up yard debris. He prepares meals, cleans house, washes dishes,
does the laundry, and enjoys reading and engaging in religious studies.
He cares for his rooster and his uncle’s disabled son.
The next functional area is social functioning. In this area, the claimant has
mild limitation. The claimant stated that he does not like being around
others. However, he goes grocery shopping and attends church 2-3 times
per week. He also corresponds with pen pals. He attends college classes.
The third functional area is concentration, persistence or pace. In this area,
the claimant has mild limitation. The claimant stated that he enjoys
reading and religious studies. He is also capable of paying his own bills.
He attends college classes and is a full-time student making A’s and B’s.
The fourth functional area is episodes of decompensation. In this area, the
claimant has experienced no episodes of decompensation, which have
been of extended duration. There is no indication in the record that the
claimant has ever had any such episodes.
Because the claimant’s medically determinable mental impairments cause
no more than “mild” limitation in any of the first three functional areas
and “no” episodes of decompensation which have been of extended
duration in the fourth area, they are not severe.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
4

paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
.

.

.

5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except
lifting more than 50 pounds occasionally or more than 25 pounds
frequently. During an 8-hour workday, he can stand and/or walk
approximately 6 hours and sit for approximately 6 hours. He can
occasionally climb ramps and stairs but never climb ladders, ropes or
scaffolds. He can occasionally balance, stoop, kneel, crouch and crawl.
He should avoid all exposure to workplace hazards, such as unprotected
machinery and unprotected heights. His work should be limited to
simple routine repetitive tasks involving simple work related decisions
with few workplace changes. He can have occasional interaction with
the public and with co-workers.
.

.

.

The claimant testified that he graduated from high school and attends
Bishop State in the computer program. He began his current schooling in
2011 and has less than one year to finish. He will then be trained to repair
computers. He stands 5’9” tall and weighs 289 pounds. He draws $129.00
per month from the Veterans Administration (VA) for his pension. He also
gets $585.00 a month from VA to go to school. He was in the National
Guard for 12½ years as a Unit Tech Supply Sargent. He last work[ed] in
air-conditioner maintenance for a few months. He has not worked since
2010. However, he has looked for work but has been unable to find work.
He lives in a trailer rent fr[ee] and helps his pastor with raking leaves and
gathering eggs. He uses a wheelbarrow to move leaves at home. He
attends school 5 days a week. His classes are just over an hour. He works
in lab after classes and stays until 3 working on computers. He is a fulltime student. He has a driver’s license and does drive. He takes oral
medication for his diabetes but overeats due to stress. He has some
medication that controls his high blood pressure. He had gallbladder
surgery within the past year. He sees a psychologist. He is actively
involved in the church and denied using drugs or alcohol since the 1980s.
He has two grown children who live out of state. He stated that he cannot
work now due to hip and leg problems. He gets dizzy when he stands.
5

Sitting causes problems and he has to change positions frequently. He
also reported difficulty sleeping. He takes a lot of medicine. His current
grades are A’s and B’s. His medication side effects are dizziness, anger
and overeating. His highest weight was 315 pounds. During the day, he
does household chores and helps his landlord by raking some leaves and
caring for his chickens. He rests in between doing his chores. He does his
chores 1 to 2 times per week for 30 minutes at a time. He takes the bus to
go for treatment at VA. In school, he has 2 teachers and [] 2 classes. He
goes to the learning center for several hours to do his assignments.
On August 24, 2011, the claimant completed a Function Report—Adult.
The claimant stated that he cooked, cleaned, ran his family members to
work and doctor’s appointments. He does the laundry, prepares meals
and cleans the kitchen. The claimant cares for his rooster, two cats and his
uncle’s disabled son. He said he has difficulty sleeping at night and lies
awake most of the night. He has no difficulties with his own personal care
and hygiene. He prepares his meals and snacks. This takes him about 20
minutes. He said he could not stand for long periods. He cleans the house,
does the laundry, mows the yard and does other yard clean up. He goes
outside daily. He shops for food and household supplies about 2-3 times
per week. He is able to pay bills and cunt change. He enjoys reading,
writing pen pals, and religious studies. He does these things fairly well.
He related that he could not stand or write for long periods. He said he
attends church twice a week. He goes to church and the library on a
regular basis. He does not need to be reminded to take medication or go
places. He does need someone to accompany him. He reported getting
mad easily. He does not like to be around people for long periods. He can
walk about 1 mile before he has to stop and rest and would need to rest
about 30 minutes before resuming walking. He reported getting along
very poorly with authority figures. He has been fired or laid off from a job
because he has a criminal record.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons explained in this
decision.
.

.

.

Progress notes from VA Biloxi cover [the] period from January 5, 2010 to
May 18, 2012. On April 12, 2012, the claimant reported he was diagnosed
with Type 2 diabetes mellitus in 1982. He has never been on insulin. He
insisted he was doing “really well now.” He also had hypertension,
hyperlipidemia and chronic obesity. His blood pressure was 157/82. His
weight was 291 and height 69”. There was only mild tenderness of the
back with limitation of range of motion. The extremities had no gross
changes. The assessments were acute low back strain, Type 2 diabetes
6

mellitus, hypertension, hyperlipidemia, morbid obesity, chronic hip and
knee pain due to obesity and apparent left hydrocele. The diagnoses were
bipolar disorder, nos (provisional diagnosis); eating disorder (binge
eating); morbid obesity; Type II diabetes mellitus and hypertension. He
was not taking any medications. He was offered topiramate for possible
benefit with weight loss and mood stability but refused. He was also
offered referral for psychotherapy but declined this as well.
On June 28, 2012, Mobile Veterans Administration personnel reported the
claimant’s Alc was 7.1. On August 1, 2012, visual acuity corrected was
20/20 in the right eye and 20/20 in the left eye. On August 10, 2012, the
claimant reported he was “doing fine and stress is a little better.” On
August 23, 2012, he was seen with complaints of loose stools, pain in the
legs and hips and dizziness. His blood pressure was 130/80. He rated his
pain [as] 5 on a 4-6 scale. He reported pain with weight bearing activities
and stress and that rest alleviated the pain. His assessments were subacute
low back strain with minimal findings; Type 2 diabetes mellitus under
poor control; fecal urgency, hypertension, hyperlipidemia, morbid
obesity, chronic hip and knee pain and apparent left hydrocele. The doctor
wanted to put him on insulin but he refused, saying he was going to lose
50 pounds before his next visit. His hypertension was doing well on
Atenolol 50/chlorthalidone and Valsartan. His hyperlipidemia was doing
well on current therapy. His hip and knee pain was due to obesity. He had
no current symptoms of hydrocele. On November 16, 2012, the claimant
reported back pain mostly in the left thoracic back near inferior tip of the
left scapula. Radiological report impression was flowing osteophyte
formation, consistent with DISH. There was mild anterior wedge
deformity of T11 and correlation with a bone density study [being]
recommended. X-rays of the hips revealed mild bilateral degenerative
arthritis in the hips. X-rays of the lumbar spine revealed degenerative disc
disease and degenerative facet disease . . . .
The claimant testified that he could not work due to hip and leg problems.
However, his activities of daily living do not reflect that he has any
disabling functional limitations that would preclude the claimant from all
work. He testified that he mows the lawn, rakes and uses a wheelbarrow.
He does laundry, prepares his own meals, washes the dishes, cleans the
house, shops for groceries and household supplies 2-3 times per week[,]
[a]ttends church 2-3 times per week and goes to the library on a regular
basis. Furthermore, the claimant is a full-time student in college and
attends regular classes and labs. He has no difficulties taking care of his
own personal hygiene. Moreover, the medical evidence does not reflect
such limitations that would preclude the claimant from perform[ing] a
range of medium work, as described in the beginning of this finding. He
does have Type 2 diabetes mellitus; however, this appears to be controlled
with medication. He reported back pain. However, VA records showed
only mild tenderness of the back. The assessment was subacute low back
strain with minimal findings. X-rays of the hips revealed only mild
bilateral degenerative arthritis in the hips. There was mention [of]
7

degenerative disc disease of the lumbar spine but there was [] no medical
source statement indicating what functional limitations the claimant had
and[,] as stated earlier, his activities of daily living do not reflect disabling
functional limitations[] whatsoever. Therefore, the claimant’s medical
records simply fail to show that he would be precluded from perform[ing]
a range of medium work as previous[ly] described.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
.

.

.

7.
The claimant was born on March 12, 1952 and was 58 years old,
which is defined as an individual of advanced age, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
.

.

.

If the claimant had the residual functional capacity to perform the full
range of medium work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 203.15. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled medium occupational base,
the Administrative Law Judge asked the vocational expert whether jobs
exist in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity. The
vocational expert testified that given all of these factors the individual
would be able to perform the requirements of representative occupations
such as industrial cleaner, medium, unskilled SVP 2, DOT #381.687-014,
with 214,000 in existence in the national economy and 2,100 in the state of
Alabama; production assembler, light, unskilled SVP 2, DOT #706.687-010
with 488,000 jobs in existence in the national economy and 7,300 in the
state of Alabama; surveillance monitor, sedentary, unskilled SVP 2, DOT
#379.367-010, with 102,000 jobs in existence in the national economy and
8

868 in the state of Alabama; kitchen helper, DOT #318.687-010, medium
unskilled SVP 2, with 419,000 jobs in existence in the national economy
and 2,300 in the state of Alabama; laundry worker, DOT #361.684-014,
with 150,000 jobs in existence in the national economy, and 1,800 in the
state of Alabama.
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of the above-cited rule.
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from August 18, 2010, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 25-28, 28, 29-30, 30, 30-31, 31 & 32-33 (internal citations omitted; emphasis in
original; footnote added).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-4)
and thus, the hearing decision became the final decision of the Commissioner of Social
Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that he is
unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the examiner must consider the
following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; and (4) the claimant’s age, education and
work history. Id. at 1005. An ALJ, in turn,
uses a five-step sequential evaluation to determine whether the claimant is
disabled, which considers: (1) whether the claimant is engaged in
substantial gainful activity; (2) if not, whether the claimant has a severe
impairment; (3) if so, whether the severe impairment meets or equals an
impairment in the Listing of Impairments in the regulations; (4) if not,
whether the claimant has the RFC to perform her past relevant work; and
9

(5) if not, whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012) (per
2

curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f)); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).
If a plaintiff proves that he cannot do his past relevant work, as here, it then
becomes the Commissioner’s burden—at the fifth step—to prove that the plaintiff is
capable—given his age, education, and work history—of engaging in another kind of
substantial gainful employment that exists in the national economy. Id. at 1237 & 1239;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct.
1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that he can perform those medium (light
and sedentary) jobs3 identified by the vocational expert (“VE”), is supported by
substantial evidence. Substantial evidence is defined as more than a scintilla and means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In
determining whether substantial evidence exists, we must view the record as a whole,
taking into account evidence favorable as well as unfavorable to the Commissioner’s]

2

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
3

The focus of this Court will not deviate from the ALJ’s medium work RFC
determination and the medium jobs identified by the VE inasmuch as it appears that had the
determination been made that the advanced-age plaintiff could only perform “light” or
“sedentary” work, he would have been found to be disabled under the grids.

10

decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).4 Courts are precluded,
however, from “deciding the facts anew or re-weighing the evidence.”

Davison v.

Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence
preponderates against the Commissioner’s findings, [a court] must affirm if the decision
reached is supported by substantial evidence.’” Id. (quoting Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Gossard offers three reasons why the Commissioner’s
decision to deny him disability insurance benefits and supplemental security income is
in error (i.e., not supported by substantial evidence): (1) the ALJ erred in finding he does
not suffer from the severe impairment of personality disorder; (2) the ALJ erred in
failing to fulfill his duty to develop the record by ordering a consultative orthopedic
examination; and (3) the ALJ’s residual functional capacity determination at the fifth
step of the sequential evaluation process is not supported by substantial evidence. In
this instance, the undersigned need not consider plaintiff’s first assignment of error
inasmuch as it is clear that the ALJ’s RFC determination is not supported by substantial
evidence and that the ALJ should have ordered a consultative examination of the
plaintiff.5

4

This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
5

The Court also parenthetically notes that it is impossible to understand the ALJ’s
failure to identify the severe impairments of degenerative disk and facet disease of the lumbar
spine, mild bilateral degenerative arthritis of the hips, and flowing osteophyte formation
consistent with DISH of the T-spine with mild anterior wedge deformity of T11. (Compare Tr.
414-416 with Tr. 25.)

11

Initially, the Court notes that the responsibility for making the residual
functional capacity determination rests with the ALJ. Compare 20 C.F.R. §§ 404.1546(c) &
416.946(c) (“If your case is at the administrative law judge hearing level . . ., the
administrative law judge . . . is responsible for assessing your residual functional
capacity.”) with, e.g., Packer v. Commissioner, Social Security Admin., 542 Fed. Appx. 890,
891-892 (11th Cir. Oct. 29, 2013) (per curiam) (“An RFC determination is an assessment,
based on all relevant evidence, of a claimant’s remaining ability to do work despite her
impairments. There is no rigid requirement that the ALJ specifically refer to every piece
of evidence, so long as the ALJ’s decision is not a broad rejection, i.e., where the ALJ
does not provide enough reasoning for a reviewing court to conclude that the ALJ
considered the claimant’s medical condition as a whole.” (internal citation omitted)). A
plaintiff’s RFC—which “includes physical abilities, such as sitting, standing or walking,
and mental abilities, such as the ability to understand, remember and carry out
instructions or to respond appropriately to supervision, co-workers and work
pressure[]”—“is a[n] [] assessment of what the claimant can do in a work setting despite
any mental, physical or environmental limitations caused by the claimant’s
impairments and related symptoms.” Watkins, supra, 457 Fed. Appx. at 870 n.5 (citing 20
C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)). Here, the ALJ determined Gossard’s physical
RFC as follows: “After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c) except lifting more than 50 pounds
occasionally or more than 25 pounds frequently. During an 8-hour workday, he can
stand and/or walk approximately 6 hours and sit for approximately 6 hours. He can
occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds. He
can occasionally balance, stoop, kneel, crouch and crawl. He should avoid all
12

exposure to workplace hazards, such as unprotected machinery and unprotected
heights.” (Tr. 28 (emphasis in original).)
To find that an ALJ’s RFC determination is supported by substantial evidence, it
must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial
record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL 1020428,
*9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D.
Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.Ala. Feb. 14, 2013)
(“’[T]he ALJ must link the RFC assessment to specific evidence in the record bearing
upon the claimant’s ability to perform the physical, mental, sensory, and other
requirements of work.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013)6; see also
Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per curiam) (“The ALJ
must state the grounds for his decision with clarity to enable us to conduct meaningful
review. . . . Absent such explanation, it is unclear whether substantial evidence
supported the ALJ’s findings; and the decision does not provide a meaningful basis
upon which we can review [a plaintiff’s] case.” (internal citation omitted)).7
6

In affirming the ALJ, the Eleventh Circuit rejected Packer’s substantial evidence
argument, noting, she “failed to establish that her RFC assessment was not supported by
substantial evidence[]” in light of the ALJ’s consideration of her credibility and the medical
evidence. Id. at 892.
7

It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the
responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the
grounds for an RFC determination. Stated differently, “linkage” may not be manufactured
speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather,
must be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL
3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s
decision because, according to the Commissioner, overall, the decision was “adequately
explained and supported by substantial evidence in the record”; holding that affirming that
decision would require that the court “ignor[e] what the law requires of the ALJ[; t]he court
‘must reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis has been conducted’”
(quoting Hanna, 395 Fed. App’x at 636 (internal quotation marks omitted))); see also id. at *3 n.4
(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have relied . . . .

(Continued)
13

In this case, the undersigned cannot find that the ALJ has provided the required
“linkage” between the record evidence and his “physical” RFC determination necessary
to facilitate this Court’s meaningful review of his decision. To be sure, the ALJ made
much of plaintiff’s testimony at the administrative hearing and comments in the
disability reports regarding his daily activities (compare Tr. 29 with Tr. 30-31) in an
attempt to establish that plaintiff can perform the physical requirements of medium
work; however, nothing about that evidence provides a firm basis that plaintiff has the
ability to perform the physical requirements of medium work, particularly considering
that the ALJ “glossed” over or totally ignored plaintiff’s clear hearing testimony that he
raked leaves and pushed a wheelbarrow of leaves around the property on which he
lived rent-free for about 30 minutes only once or twice a week (Tr. 55-56), that he often
stops to rest while performing household duties in the small trailer in which he lives
(Tr. 55), and his consistent reports and testimony that he cannot stand for lengthy
periods (compare Tr. 45, 47 & 52 with Tr. 170). In ultimately determining plaintiff can
perform the requirements of medium work, the ALJ focused solely on certain comments
to make it appear that Gossard is capable of performing much more in the way of
physical activity than that actually testified to by him (or reported by him). (See Tr. 3031.) When plaintiff’s reporting/testimony of his daily activities is understood in proper

There may very well be ample reason, supported by the record, for [the ALJ’s ultimate
conclusion]. However, because the ALJ did not state his reasons, the court cannot evaluate
them for substantial evidentiary support. Here, the court does not hold that the ALJ’s ultimate
conclusion is unsupportable on the present record; the court holds only that the ALJ did not
conduct the analysis that the law requires him to conduct.” (emphasis in original)); Patterson v.
Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon
the reasons he gave.”).

14

context,8 there is simply no basis to find that plaintiff can perform the lifting (and
carrying9) requirements of medium work or the prolonged standing requirement of
medium work, see SSR 83-10 (“In most medium jobs, being on one’s feet for most of the
workday is critical.”). Plaintiff’s testimony/reports regarding his daily activities sheds
very little, if any, light on his ability to lift and carry weight and certainly does not
provide substantial evidence for the determination that plaintiff can frequently lift and
carry 25 pounds. This is not only because plaintiff offered no estimate on the weight he
can lift and carry but also because plaintiff continuously “qualified” his testimony
regarding the daily activities he performed (like mowing, household chores, raking
leaves and pushing a wheelbarrow) with comments that he could not perform those
activities continuously and, instead, had to take frequent rests because of his inability to
stand for long periods. And there is absolutely no evidence in the record that plaintiff

8

Although the ALJ made the cryptic and canned statement that “claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible” (Tr. 30), he nowhere identifies any specific and adequate reasons for
questioning plaintiff’s testimony that he cannot stand for prolonged periods or that he must
often rest when performing certain activities (such as household chores, mowing, raking leaves,
etc.) because of the inability to stand for long periods (see Tr. 30-31). Accordingly, the
undersigned must accept plaintiff’s testimony in this regard as true, see Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995) (“Failure to articulate the reasons for discrediting subjective pain
testimony requires, as a matter of law, that the testimony be accepted as true.”), and the truth of
such testimony simply cannot be reconciled with the ability to perform the requirements of
medium work.
9

The undersigned finds interesting that the ALJ failed to make mention in his RFC
determination of the claimant’s ability to “carry” weight. (See Tr. 28 (“[T]he claimant has the
residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except lifting more than 50 pounds occasionally or more than 25 pounds
frequently.”).) Even if the undersigned was to consider this failure harmless in light of the
hypothetical posed to the VE at the hearing and the VE’s response (see Tr. 61-62), what this
Court cannot ignore is the lack of any evidence in the record that plaintiff can frequently lift and
carry 25 pounds and occasionally lift 50 pounds. Plaintiff’s “wheelbarrow” testimony simply
does not “ring the bell” in this regard, given that there is to nothing suggest that pushing a
wheelbarrow of unidentified weight for 30 minutes (with rests) for one to two times a week
“equates” to the ability to frequently lift and carry 25 pounds or occasionally lift 50 pounds.

15

can perform the prolonged standing required of medium work,10 in light of plaintiff’s
qualifying testimony regarding certain daily activities (e.g., raking and wheelbarrow
usage, household chores, etc.) and his clear testimony that his “activities” as a full-time
student are sedentary in nature (see Tr. 66 (“I don’t stand up going to school, I’m sitting
down all the time.”)).11
Any attempt by the Commissioner to now rely on the physical residual
functional capacity assessment completed by non-examiner Dr. E. Russell March, Jr. (see
Tr. 241-248) to supply substantial support for the ALJ’s RFC determination12 would be
unavailing for several reasons. First, the ALJ makes no mention of this RFC assessment
in his decision and, therefore, any reliance by the Court on this assessment would be
improper because it would require the undersigned to engage in a reweighing of the
evidence. Compare Davison, supra, 370 Fed. Appx. at 996 (courts are precluding from
“deciding the facts anew or re-weighing the evidence.”) with Durham, supra, at *3 n.4
(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have
relied . . . . There may very well be ample reason, supported by the record, for [the
ALJ’s ultimate conclusion]. However, because the ALJ did not state his reasons, the

10

The undersigned would note that the medium jobs identified by the VE in
response to the ALJ’s hypothetical undoubtedly require prolonged standing inasmuch as the
ALJ stressed in his hypothetical question that the hypothetical individual would be capable of 6
hours of standing during an 8-hour workday and made no mention of walking (compare Tr. 61
with Tr. 62).
11

In addition, attending church 2-3 times weekly and going to the library weekly
does not in any manner suggest that plaintiff can perform the requirements of medium work;
sedentary (or light) work, perhaps, but not medium work.
12

Indeed, but for the ALJ making no mention of the non-examiner’s RFC
assessment (see Tr. 23-33), this assessment dovetails with that of the ALJ with respect to the
lifting and carrying, standing, walking, and sitting requirements of medium work (compare Tr.
28 with Tr. 242).

16

court cannot evaluate them for substantial evidentiary support. Here, the court does
not hold that the ALJ’s ultimate conclusion is unsupportable on the present record; the
court holds only that the ALJ did not conduct the analysis that the law requires him to
conduct.” (emphasis in original)). In addition, this non-examining RFC assessment was
completed on October 3, 2011 (Tr. 248)—and makes clear that it is based on plaintiff’s
diabetes, hypertension, morbid obesity, dermatitis, and tinea versicolor (Tr. 242)—more
than one year prior to x-ray films showing flowing osteophyte formation consistent
with DISH of the T-spine, mild anterior wedge deformity of T11 (Tr. 414), mild bilateral
degenerative arthritis in the hips (Tr. 415), and degenerative disk and facet disease of
the lumbar spine (Tr. 416). It would be rank speculation for this Court to conclude that
these x-ray findings would have had no impact on Dr. March’s RFC assessment made
over a year earlier.13
Because substantial evidence of record does not support the Commissioner’s
determination that Gossard can perform the physical requirements of medium work as
identified by the ALJ (see Tr. 28), the Commissioner’s fifth-step determination is due to
be reversed and remanded for further proceedings not inconsistent with this decision.
13

In his decision, the ALJ does make mention of these x-ray findings (Tr. 30 & 31)
but ultimately appears to dismiss them based upon his observation that “no medical source
statement [was produced by the VA] indicating what functional limitations the claimant had[.]”
(Tr. 31.) The problems with this comment, however, are that it appears to contain a backhanded
admission that the x-ray findings (at least those of the lumbar spine) would support functional
limitations and, moreover, “begs” whether the ALJ should have obtained the services of an
orthopedist (or other specialist) to evaluate plaintiff, particularly in light of the comment on the
T-spine report that “correlation with a bone density study is recommended[]” (Tr. 414). See
Ingram v. Commissioner of Social Security, 496 F.3d 1253, 1269 (11th Cir. 2007) (“The
administrative law judge has a duty to develop the record where appropriate but is not
required to order a consultative examination as long as the record contains sufficient evidence
for the administrative law judge to make an informed decision.”). Given the undersigned’s
earlier analysis with respect to plaintiff’s “daily activities” and the just-mentioned comment by
the ALJ, the undersigned finds that this case represents the rare one in which a consultative
examination by an orthopedist (or other physician) was required in order for the ALJ to make
an informed decision. See id.

17

CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157,
115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The
remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for
purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S.
292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over
this matter.
DONE and ORDERED this the 29th day of May, 2015.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

18