Barnhart v. Berryhill

Filing 20

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be AFFIRMED. Signed by Magistrate Judge P. Bradley Murray on 2/7/2018. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LOGAN M. BARNHART,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION NO. 17-0249-CG-MU

MEMORANDUM OPINION AND ORDER
Plaintiff Logan M. Barnhart 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 (“the Commissioner”) denying his claim for
Disability Insurance Benefits (“DIB”). 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. (Doc. 17 (“In accordance with the 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.”)). See also Doc. 19. Upon consideration of the administrative
record, Barnhart’s brief, the Commissioner’s brief, all other documents of record,

and oral argument, it is determined that the Commissioner’s decision denying
benefits should be affirmed.1
I. PROCEDURAL HISTORY
On January 16, 2013, Barnhart applied for a Period of Disability and DIB,
under Title II of the Social Security Act, alleging disability beginning on October
1, 2011. (Tr. 325). After his application was denied at the initial level of
administrative review on March 7, 2013, Barnhart requested a hearing by an
Administrative Law Judge (ALJ). (Tr. 184, 192). After an initial hearing was held
on July 23, 2014, and a supplemental hearing was held on April 14, 2015, the
ALJ issued an unfavorable decision denying Barnhart’s claim on the basis that he
was not disabled under the relevant provisions of the Act. (Tr. 74-97). Barnhart
appealed the ALJ’s decision to the Appeals Council, which denied his request for
review on April 10, 2017. (Tr. 1-7).
After exhausting his administrative remedies, Barnhart sought judicial
review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The
Commissioner filed an answer and the social security transcript on August 31,
2017. (Docs. 7, 8). On September 29, 2017, Barnhart filed a brief in support of
his claim. (Doc. 9). The Commissioner filed her brief on January 12, 2018. (Doc.
15). Oral argument was held before the undersigned Magistrate Judge on
January 30, 2018. (Doc. 18). The case is now ripe for decision.

1
Any appeal taken from this Order and Judgment shall be made to the Eleventh
Circuit Court of Appeals. See Doc. 17 (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for
the judicial circuit in the same manner as an appeal from any other judgment of
this district court.”).

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II. CLAIM ON APPEAL
Barnhart alleges that the ALJ’s decision to deny him benefits is in error
because the ALJ’s Residual Functional Capacity (RFC) assessment was not
supported by substantial evidence. (Doc. 9 at pp. 1- 2).
III. BACKGROUND FACTS
Barnhart was born on September 29, 1985, making him 27 years old at
the time he filed his claim for benefits. (Tr. 356). Robinson alleged disability due
to a brain tumor/cancer, paralysis in his dominant hand, and anxiety. (Tr. 360).
He graduated from high school, attending regular education classes, and
completed two years of college. (Tr. 361). He worked as an inventory recounter
from February 2008 until December 2010, when he stopped working to attend
college. (Tr. 360-61). He did not work during 2011 and 2012, but began working
part-time as a delivery driver for Papa John’s Pizza on December 23, 2013. (Tr.
79). In October of 2011, he was diagnosed with a brain tumor. (Tr. 82). He
underwent surgery to remove the tumor, but did not require chemotherapy or
radiation. (Id.). As a result of the tumor and/or surgery, he has residual problems
with his right upper extremity, as well as memory and cognitive issues. (Id.).
Barnhart takes care of his own personal care, but he does have some
difficulty using his right hand for things such as buttoning, hair care, and shaving.
(Tr. 373-74). He is able to cook meals using his left hand, mow the lawn, do
laundry, and cleaning. (Tr. 374). He can count change, handle a savings
account, and use a checkbook/money orders, but has some difficulty handling
money with his right hand. (Tr. 375-76). He is able to drive and go out alone. (Tr.

3

375). He goes outside at his home on a daily basis. (Id.). He spends time with
others talking, eating, gaming, and watching television on a regular basis. (Tr.
376). He enjoys watching television, gaming, and drawing. (Id.). He stated in his
Function Report that he can pay attention for a long while, can follow written and
oral instructions pretty well, can handle changes in routine pretty well, can handle
stress, and gets along with authority figures very well. (Tr. 377-78). After
conducting the hearings, the ALJ made a determination that Barnhart had not
been under a disability during the relevant time period, and thus, was not entitled
to benefits. (Tr. 77-93).
IV. ALJ’S DECISION
The ALJ made the following relevant findings in her September 25, 2015
decision:
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform a reduced range of light
work as defined in 20 CFR 404.1567(b). The claimant is
able to lift and carry 10 pounds frequently and 20
pounds occasionally; sit, stand and walk for 8 hours
each during an 8 hour workday; no use of the right
upper extremity to push and pull; no crawling;
frequently climb ramps and stairs; no climbing of
ladders, ropes or scaffolds; no requirement for
bilateral manual dexterity; no reaching overhead with
the right upper extremity; no fingering with the right
upper extremity; occasionally reach in all other
directions with the right upper extremity; occasionally
handle with the right upper extremity; frequently feel
with the right upper extremity; able to perform simple
routine tasks involving no more than simple, short
instructions; no requirement to hand write
instructions or write reports; and able to sustain
concentration and attention for 2 hour periods.

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In making this finding, the undersigned has considered all
symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p.
The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
***
The claimant alleges that his ability to work is limited by a brain
tumor/cancer, paralysis in the dominant hand caused by the
brain tumor, and anxiety/stress. The claimant reported he was
prescribed Dexamethasone to prevent swelling in his brain.
According to the claimant, he stopped working on December 31,
2010 because he was going to college. As of August 2011, the
claimant had completed 2 years of college (Exhibits 2E and 9E).
He reported no medication side effects. (Exhibit 9E).
At the initial hearing, the claimant testified that he was in college
and was diagnosed with a brain tumor around October 2011. He
underwent surgery, but he did not require chemotherapy or
radiation. The claimant reported residual problems with his right
upper extremity along with memory/cognitive problems. The
claimant testified he was seeking no mental health treatment,
and he had been to the vocational rehabilitation counselor only
one time. The claimant is working part-time for 8-16 hours a
week as a delivery driver, and the claimant testified he received
accommodations at work. The claimant failed, however, to
provide any documentation to support his claims regarding
accommodations. The claimant stated he was working on
improving strength in the right hand through exercises.
At the supplemental hearing after the consultative exams, the
claimant testified he was still working as a delivery driver on a
part time basis, but he was unable to work the dough to make
pizzas and had difficulty with operating the oven for long periods.
The claimant indicated he used the left upper extremity to drive
and was able to hold a pen in the right hand. He has no
restrictions on his driver's license, and he performs some chores
at home including small loads of laundry and making simple
meals. The claimant visits with friends and uses the internet. He
uses the mouse and types primarily with his left hand. The
claimant acknowledged he did not perform the physical therapy

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exercises for his right upper extremity as often as he should. He
also testified he had not returned to vocational rehabilitation. The
claimant did not obtain his job with Papa John's Pizza through
vocational rehabilitation, and he also testified that he was not
looking to return to college.
The claimant is status post craniotomy for brain lesion with
decreased use of right upper extremity, which results in the
limitation on his ability to lift and carry 10 pounds frequently and
20 pounds occasionally; sit, stand and walk for 8 hours each
during an 8 hour workday; no use of the right upper extremity to
push and pull; no crawling; frequently climb ramps and stairs; no
climbing of ladders, ropes or scaffolds; no requirement for
bilateral manual dexterity; no reaching overhead with the right
upper extremity; no fingering with the right upper extremity;
occasionally reach in all other directions with the right upper
extremity; occasionally handle with the right upper extremity;
frequently feel with the right upper extremity; and no requirement
to hand write instructions or write reports. The claimant's
depression and ADD result in the limitation on his ability to
perform simple routine tasks involving no more than simple,
short instructions; and sustain concentration and attention for 2hour periods.
***
The claimant also saw Roger Ove, M.D., a radiation oncologist,
for follow up after his surgery. On November 29, 2011, Dr. Ove
noted the claimant's symptoms prior to the surgery had largely
resolved, but he still had some persistent weakness of his right
upper extremity.
* * *
The claimant saw Dr. Martino and Dr. Ove in the NeuroOncology Clinic on March 29, 2012. Dr. Martino noted the
claimant complained of anxiety and stress headaches, and Dr.
Martino noted the anxiety improved immediately when the MRI
findings were discussed showing no evidence of progression.
The claimant was attending physical therapy for his right hand
weakness (Exhibit 6F). Dr. Ove noted the claimant reported no
significant symptoms but had persistent right extremity
neurological deficit. There was evidence of an objective strength
deficit in the right upper extremity but no sensory deficit was
noted (Exhibit 4F).

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The claimant underwent nine physical therapy/occupational
therapy visits for his right hand between February 9, 2012 and
May 30, 2012. The claimant reported having difficulty writing
and soreness with use of the right hand. At the initial evaluation,
the claimant had difficulty isolating fine motor skills and had no
digit abduction or adduction. The May 2, 2012 visit noted the
claimant reported improvement when using his right hand for
handwriting. On May 16, 2012, the claimant had improved
timeliness when writing the alphabet and numbers with the right
hand, and the occupational therapist reported improvement in
the claimant's fine motor skills. The claimant was given home
exercises to continue after his May 30, 2012 discharge from
therapy (Exhibit 7F).
On August 28, 2012, an MRI showed stable postsurgical
changes of the left frontal and parietal lobes without evidence
of tumor recurrence (Exhibits 4F and SF). On August 30, 2012,
the claimant told Dr. Martino that he had been doing well and
was seeking employment. Dr. Martino noted the MRI from
August 28 2012 was stable without recurrence of the lesion.
The claimant had improved ambulation due to improved
strength in the right lower extremity, and he demonstrated
improved grip strength in the right hand, although it continued to
be weaker than the left. The claimant also saw Dr. Ove on
August 30, 2012. The claimant reported he was doing relatively
well and had no new neurological problems. Dr. Ove noted the
claimant had made some improvement with physical therapy,
but the claimant continued to have some persistent fine motor
touch problems with his right upper extremity. The physical
exam noted no pronator drift with normal proprioception and
coordination. The claimant demonstrated grossly intact strength
and sensation (Exhibit 6F).
***
The April 8, 2013 MRI showed no evidence of progression and
no recurrence of the tumor (Exhibit 6F). The claimant presented
to Dr. Martino on April 11, 2013. The claimant reported he was
working at PNC residential photography. The claimant also
reported continued difficulty using his right hand, and he stated
he was using the left hand to type. There was noted
improvement in the claimant's right hand flexion and contracture.
The claimant exhibited good memory and improved grip
strength in the right hand, although it continued to be weaker
than the left. Dr. Ove's April 11, 2013 visit also noted no

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evidence of recurrent disease. There was no progression of
symptoms, and the claimant had concluded therapy with some
improvement noted. The claimant reported shaking when raising
his right hand over his head along with mood swings (Exhibit
6F).
***
The representative submitted evidence from vocational
rehabilitation after the initial hearing, which included an
evaluation with Blaine Crum, Ph.D. Dr. Crum noted the claimant
reported having difficulty using his right arm, including difficulty
raising his right hand above his head. The claimant also
reported to Dr. Crum that he had memory problems and
difficulty organizing his thoughts, writing things out by hand,
note taking, maintaining attention/concentration, and test
anxiety. The claimant reported he was currently employed by
Papa John's Pizza as a delivery driver. The claimant also
reported that he enjoyed reading, watching videos, and playing
video games. The claimant was administered several tests,
including the Brown Attention Deficit Disorder Scales (Brown),
Career Assessment Inventory, Wechsler Adult Intelligence
Scale (WAIS-IV), and Woodcock-Johnson Tests of Achievement
(WJ-111ACH). (Exhibit 12E).
On the WAIS-IV, the claimant achieved a Verbal Comprehension
Index Score of 107 (Average), a Perceptual Reasoning Index
Score of 117 (High Average), a Working Memory Index Score of
92 (Average), a Processing Speed Index Score of 97 (Average),
and a Full Scale IQ Score of 106 (Average). Dr. Crum opined
that the claimant 's general cognitive ability was within the
average range of intellectual functioning, as measured by the
Full Scale IQ. According to Dr. Crum, the claimant's overall
thinking and reasoning abilities exceeded those of
approximately 66% of his peers (Exhibit 12E).
Dr. Crum diagnosed the claimant with residual problems with
attention due to a brain tumor and limited use of the right hand.
Dr. Crum noted that the testing results suggested the claimant
had difficulty with forgetfulness and recall of learned material.
The claimant also demonstrated poor abstract thinking skills and
poor short-term auditory memory. Dr. Crum also noted that the
claimant demonstrated poor manual dexterity with the right hand
and difficulty writing simple sentences with speed due to using
the left hand. The claimant had difficulty performing simple
addition, subtraction, and multiplication problems with speed

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due to using the left hand (Exhibit 12E).
On December 8, 2014, the claimant underwent the psychological
exam with John W. Davis, Ph.D. Dr. Davis noted the claimant
drove to the evaluation. The claimant reported to Dr. Davis that
he was unable to maintain employment due to lack of functioning
in his right hand. He also reported additional stressors related to
anxiety over his financial situation. He did not complain of
memory problems or a cognitive impairment. The claimant
stated he had been working at Papa John's pizza as a delivery
driver for over a year. Dr. Davis noted the claimant exhibited no
unusual gait or posture abnormalities. There were no unusual
mannerisms, tics, or gestures noted by Dr. Davis. The claimant
was oriented to person, place, and time. The claimant was able
to handle Serial 7's, make change, do simple arithmetic and
count backwards from 20 to 1 without difficulty. He was able to
spell "world" backwards. Dr. Davis opined that the claimant
exhibited no indications of deficits in his overall concentration or
attention. The claimant's memory was intact. There were no
loose associations and no tangential or circumstantial thinking
was noted. Dr. Davis noted the claimant has normal social
relationships with his family and peers. Dr. Davis estimated that
the claimant functioned in the average range of intelligence. Dr.
Davis' diagnostic impression included depression related to his
medical condition (Exhibit 9F).
Dr. Davis also completed a mental assessment. Dr. Davis
opined that the claimant would have moderate restrictions in his
ability to interact with the general public, co-workers, and
supervisors and in his ability to respond to usual work situations
and changes in routine setting. He would also be moderately
limited in his ability to understand and remember complex
instructions, carry out complex instructions, and make
judgments on complex work related decisions (Exhibit 9F).
The claimant underwent a consultative physical exam with John
G Yager, M.D. on December 12, 2014. Dr. Yager noted the
claimant alleged problems with using his right hand after having
surgery for a brain tumor. Dr. Yager reported the claimant was
followed with serial MRI scans, the last of which was a year ago.
The claimant reported he lost his insurance and was no longer
able to afford to have the MRIs performed on a yearly basis. Dr.
Yager noted, however, that the last MRI scan did not show any
tumor recurrence. On neurological exam, the claimant 's visual
fields were full to confrontation. Extraocular muscles were intact.

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The face was fairly symmetric. His tongue protruded in the
midline. The claimant's speech was normal. His facial sensation
was normal to vibration and cool sensation. The claimant had
slightly decreased vibratory sense of the right hand compared to
the left. His sensation was normal and equal in the lower
extremities. The claimant's finger-to-nose was performed better
on the left than the right as was finger opposition. Dr. Yager
reported that the claimant was limited in his ability to oppose his
fingers to the thumb in the right hand and was unable to get his
little finger opposed to the thumb on the right hand. Motor
strength was 4/5 in the right upper extremity and was 5/5
otherwise, including the right lower extremity. The claimant
ambulated with a narrow base with a good arm swing bilaterally
and no limp. He was able to heel-and-toe walk. He used his left
hand when asked to tie and untie his shoes. The claimant could
fixate with the right hand. Dr. Yager's clinical impression was that
the claimant had a brain tumor in the left hemisphere, with
resultant decreased use of the right upper extremity with some
hyperreflexia and ataxia of his dominant hand. Dr. Yager opined
that the claimant was limited to sedentary activities and would
have difficulty with right hand fine motor skills (Exhibit 10F).
Dr. Yager completed a Medical Source Statement and opined that
the claimant was able to lift up to twenty pounds frequently and
fifty pounds occasionally using the left hand, and he was able to
carry up to twenty pounds frequently and occasionally with the left
hand. The claimant was able to sit, stand, and walk for eight
hours each during an eight-hour workday. The claimant was
precluded from using the right hand to reach overhead or finger,
and he was able occasionally reach in all other directions, handle
and push/pull with the right hand. The claimant was able to
frequently feel with the right hand, and he was able to
continuously use the left hand to reach overhead and in all
directions, handle, finger, feel, and push/pull. The claimant was
able to continuously push/pull with the lower extremities and
frequently climb stairs and ramps, balance, stoop, kneel, and
crouch. He was precluded from climbing ladders or scaffolds and
crawling. The claimant could engage in frequently exposure to
unprotected heights and continuous exposure to moving
mechanical parts, humidity and wetness, dust, odors, fumes,
pulmonary irritants, extreme cold, extreme heat, and vibrations. He
was able to frequently operate a motor vehicle with appropriate
modifications (Exhibit 10F).

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The claimant's history of a craniotomy for brain lesion and decreased use
of right upper extremity were considered and support a finding that the
claimant's maximum residual functional capacity is for a reduced range of
light work with the exertional and non-exertional limitations noted above.
That is, the claimant is precluded from work requiring use of the right
upper extremity to push and pull or perform bilateral manual dexterity.
The finding that he can frequently feel with the right upper extremity is
consistent with the evidence showing normal sensation. However, the
evidence also documents that the claimant demonstrated improved grip
strength in the right hand, but it was still weaker than the left (Exhibits 2F,
6F, 8F and 1OF). In the Function Report completed by the claimant in
January 2013, he reported difficulty angling the razor to shave and
grasping utensils (Exhibit 5E). Therefore, the claimant is precluded from
crawling and climbing ladders, ropes or scaffolds. He is unable to reach
overhead or finger with the right upper extremity. The claimant can
occasionally reach in all other directions with the right upper extremity
and occasionally handle with the right upper extremity. The claimant has
reported difficulty raising his right arm above his head, which has been
documented in the physical exams with Drs. Martino and Ove (Exhibit
6F). The claimant is also unable to perform work that would require him to
hand write instructions or reports due to residual problems with his right
dominant hand and difficulty using his left hand for writing. The
undersigned finds that no additional physical exertional or non-exertional
limitations are warranted. The undersigned has considered the claimant's
activities of daily living in accessing his residual functional capacity
including his work as a pizza delivery driver. The claimant testified at the
supplemental hearing he was able to use the right hand to button and
work a zipper with difficulty. The claimant also testified he was able to
write with the left hand and use a computer mouse with the left hand. It
is also noted that the MRI scans of the brain in 2011, 2012 and 2013
showed no recurrence of the claimant's brain tumor (Exhibits 5F and 8F).
The claimant's depression and ADD were considered and
support the limitation for unskilled work including the ability to
perform simple routine tasks involving no more than simple, short
instructions and the ability to sustain concentration and attention
for two-hour periods. The undersigned has included these
limitations based on the claimant's complaints of memory
problems , mood swings, depression/anxiety, and decreased
ability to maintain focus and concentration after his surgery
(Exhibits 12E, 2F, 4F, 6F and 9F). The claimant testified that he
uses a GPS when working as a delivery driver due to memory
problems. The mental limitations in the residual functional
capacity accommodate the claimant's alleged residual cognitive
problems. He has sought no formal mental health treatment or
taken any psychotropic medications. The testing performed by

11

Dr. Crum's office showed attention, concentration and mental
control was in the average range (Exhibit 12E). Dr. Davis also
noted no significant deficits in the claimant's overall
concentration or attention (Exhibit 9F).
Regarding the opinion evidence referenced in the record, the
undersigned has given the consultative exam from Dr. Yager in
Exhibit 10F some weight. It should be noted that the limitations in
the claimant's right upper extremity referenced in Dr. Yager's
narrative findings are somewhat inconsistent with the functional
assessment completed by Dr. Yager and the claimant's
acknowledged activities of daily living. In the narrative report, Dr.
Yager indicated that the claimant would be limited to sedentary
activities and noted that while lifting and carrying could be
performed with the left hand, the claimant had difficulty using the
right hand for fine motor skills. Dr. Yager in the narrative report
noted the claimant stated he had tried to work at several jobs,
but because of right hand issues, the claimant had been refused
work. This is not consistent with the claimant's documented work
as a pizza delivery driver, which is not substantial gainful activity
but is ongoing. It is noted that the claimant was working in this
position at the time of the consultative exam with Dr. Yager, and
he has continued to work at this job through 2015. Dr. Yager
noted that the claimant's motor strength was 4/5 in the right
upper extremity, and the claimant was able to fixate his right
hand. Dr. Yager's diagnostic impression included decreased
use of the right upper extremity with some hyperreflexia and
ataxia of the right hand. Dr. Yager also opined that the claimant
was limited to frequent climbing of ramps and stairs, balancing,
stooping, kneeling, and crouching because of decreased use of
the right upper extremity. However, the medical evidence and
narrative exam from Dr. Yager do not support these limitations.
The claimant drives to deliver the pizza, and he testified at the
supplemental hearing he was able to use the right hand to button
and work a zipper, with some difficulty. The claimant stated he
writes with left hand. The claimant uses a computer to access the
internet and has a Facebook page. The claimant uses his left
hand to work the computer mouse, but he testified to performin g
chores including small loads of laundry and preparing simple
meals. The residual functional capacity above does not provide
for limitations on balancing, stooping, kneeling or crouching with
decreased use of right upper extremity since there is no
evidence to support such limitations. Indeed, the record shows
the claimant's complaints related to his right lower extremity

12

resolved after surgery (Exhibit 4F).
***
The representative objected to the consultative exam from Dr.
Davis at the April 2015 hearing and in Exhibit 17B. At the
hearing, the representative argued that Dr. Davis did not actually
perform the testing at the exam and spent very little time with the
claimant. The representative requested that Dr. Crum's testing
in Exhibit 12E be given more weight. In response to this
argument, the undersigned notes that some of the testing
referenced in Dr. Crum's report was performed by others.
Indeed, the WAIS-IV and WJ-III tests noted in Dr. Crum's report
were administered by Brenda Howell, M.Ed. (Exhibit 12E).
Moreover , there is no documentation in the report from Dr.
Davis or the record to either support or discredit the assertions
made by the representative that Dr. Davis spent very little time
with the claimant during his evaluation. It is noted, however, that
there are inconsistencies found within Dr. Davis' report that were
provided to Dr. Davis by the claimant. The claimant reported to
Dr. Davis that he was unable to maintain employment due to the
lack of functioning in his right hand. He also reported anxiety
over his financial situation. Despite this assertion, the claimant
acknowledged to Dr. Davis that he had worked as a delivery
driver at Papa John's Pizza for the past year. Dr. Davis'
diagnostic impression included depression. Dr. Davis noted in
the mental assessment that the claimant would have moderate
restrictions in his ability to interact with the general public, coworkers and supervisors and in his ability to respond to usual
work situations and changes in routine setting. He would also be
moderately limited in his ability to understand and remember
complex instructions, carry out complex instructions, and make
judgments on complex work related decisions. The undersigned
has given the opinion from Dr. Davis some weight, but the
evidence does not support the moderate social limitations
referenced by Dr. Davis. The claimant is currently working as a
pizza delivery driver, which is a job that requires him to operate
a motor vehicle and interact with customers. This job is not
performed at substantial gainful activity levels, but the work is
not consistent with the limitations identified by Dr. Davis. The
claimant also testified that he visits with friends several times a
week.
With regard to Dr. Crum, the undersigned has given some
weight and has accounted for the information in Dr. Crum's report

13

in the residual functional capacity that is consistent with the other
available evidence. Dr. Crum's diagnosis was residual problems
with attention due to brain tumor and limited use of his right hand.
These diagnoses have been accommodated in the residual
functional capacity as explained above.
The representative asserts that Dr. Crum's report indicates the
claimant faces challenges to employment including reported
forgetfulness in daily routines and problem s with recall of
learned material (Exhibit 17B). In contrast, the undersigned
points out that Dr. Crum stated that the claimant's ability to
sustain attention, concentration and exert mental control was in
the average range. Dr. Crum also noted that the claimant's ability
to process simple or routine visual material without making
errors was in the average range when compared to his peers and
noted the claimant's Processing Speed Index Score was 97.
According to Dr. Crum, the claimant 's total raw score of 50 on the
Brown scale likely fell within the attention deficit range. Dr.
Crum's report also noted that the claimant had T scores above 65
in Cluster 5 only, which addressed the area of utilizing working
memory and accessing recall (Exhibit 12E). The mental residual
functional capacity limitations have taken this finding into
consideration in limiting the claimant to unskilled work with
simple routine tasks involving no more than simple, short
instructions and simple work related decisions with few work
place changes. The claimant is able to sustain concentration and
attention for two-hour periods.
The representative also noted the WAIS-IV test showed poor
abstract thinking skills and poor short-term auditory memory
(Exhibit 17B). However, the claimant's scores on the WAIS-IV
were all in at least the average range (Exhibit 12E). Dr. Crum
also noted on observation that the claimant demonstrated poor
manual dexterity with the right hand and difficulty performing
simple addition, subtraction and multiplication problems with
speed due to using the left hand. The claimant also demonstrated
difficulty writing simple sentences with speed due to using left
hand (Exhibit 17B). These dexterity problems have been
accommodated in the residual functional capacity above;
however, Dr. Crum's report also noted the claimant said he
enjoys playing video games (Exhibit 12E). The undersigned has
limited the claimant to no use of the right upper extremity for
pushing and pulling along with no crawling and no climbing of
ladders, ropes or scaffolds. The claimant is also precluded from

14

work requiring bilateral manual dexterity, reaching overhead with
the right upper extremity, fingering with the right upper extremity,
and performing work requiring him to hand write instructions or
reports. The claimant is able to occasionally reach in all other
directions with the right upper extremity, occasionally handle with
the right upper extremity; and frequently feel with the right upper
extremity.
The undersigned notes that Dr. Crum's report also indicated
that the results of the testing suggested strengths including the
fact that he is “personable and interacts appropriately with
authority figures.” He noted the claimant demonstrated average
Reading, Math and Writing skills on the WJ-III ACH. On the
WAIS-IV, the claimant demonstrated verbal scores that are in
the average range. The claimant also demonstrated the ability
to apply logic and reasoning to spatial relationship problems
along with above average non-verbal reasoning ability and
above average ability to store and retrieve acquired knowledge.
Dr. Crum also noted the claimant was motivated and goal
oriented. According to Dr. Crum, the claimant had a valid
driver's license and access to transportation, which would
enable independence for school and work. Dr. Crum further
noted the claimant had work experience indicating knowledge
of employer expectations and basic work rules. As a result, the
undersigned finds that the assertions made by the
r epresentative in Exhibit 17B regarding the report from Dr.
Crum do not support a conclusion that the claimant is disabled.
The claimant's statements concerning his severe impairments
and their impact on his ability to work are not entirely credible.
The claimant has continued to work, albeit not at substantial
gainful activity levels. He has shown improvement with use of
the right upper extremity, and his ability to drive, perform some
chores, and use a computer undermine his assertions of
disability. Based on a review of the medical evidence of record,
as well as the claimant's testimony at the hearing, the
undersigned finds that the preponderance of the evidence
contained in the record does not support the claimant's
allegations of totally incapacitating symptomatology, and that the
claimant's statements regarding the severity, frequency, and
duration of his symptomatology are overstated. Therefore, the
undersigned finds that the claimant's allegation of inability to
work because of the subjective complaints is not fully
credible.

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(Tr. 81-91).
V. DISCUSSION
Eligibility for DIB requires that the claimant be disabled. 42 U.S.C. §
423(a)(1)(E). A claimant is disabled if the claimant is unable “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). The impairment must be severe, making the claimant
unable to do the claimant’s previous work or any other substantial gainful activity
that exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§
404.1505-11. “Substantial gainful activity means work that … [i]nvolves doing
significant and productive physical or mental duties [that] [i]s done (or intended)
for pay or profit.” 20 C.F.R. § 404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential
evaluation in determining whether the claimant is disabled:
(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 Impairment in the regulations; (4) if not, whether the
claimant has the RFC to perform her past relevant work; and (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. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (per
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). The
claimant bears the burden of proving the first four steps, and if the claimant does

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so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999).
If the claimant appeals an unfavorable ALJ decision, the reviewing court
must determine whether the Commissioner’s decision to deny benefits was
“supported by substantial evidence and based on proper legal standards.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations
omitted); see 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. (citations omitted). “In determining whether
substantial evidence exists, [the reviewing court] must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.
1986). The reviewing court “may not decide the facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner].” Id. When a
decision is supported by substantial evidence, the reviewing court must affirm
“[e]ven if [the court] find[s] that the evidence preponderates against the
Secretary’s decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986).
Barnhart asserts one ground in support of his contention that the ALJ
erred in concluding that he was not entitled to benefits: he argues that the ALJ’s
residual functional capacity (“RFC”) assessment is not supported by substantial
evidence because it is not supported by the opinions of the medical doctors and
because she did not delineate how she determined Barnhart’s RFC. (Doc. 9 at

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pp. 4-7). Conversely, the Commissioner asserts that the ALJ properly applied the
five step sequential process in making her determination, including her
assessment of Barnhart’s RFC. (Doc. 15 at pp. 3-15). After concluding that
Barnhart had the following severe impairments: status post craniotomy for brain
lesion with decreased use of right upper extremity, major depressive disorder,
and attention deficit disorder, the ALJ found him to have the RFC to perform a
reduced range of light work, with certain limitations, set forth as follows:
The claimant is able to lift and carry 10 pounds frequently
and 20 pounds occasionally; sit, stand and walk for 8 hours
each during an 8 hour workday; no use of the right upper
extremity to push and pull; no crawling; frequently climb
ramps and stairs; no climbing of ladders, ropes or scaffolds;
no requirement for bilateral manual dexterity; no reaching
overhead with the right upper extremity; no fingering with the
right upper extremity; occasionally reach in all other
directions with the right upper extremity; occasionally handle
with the right upper extremity; frequently feel with the right
upper extremity; able to perform simple routine tasks
involving no more than simple, short instructions; no
requirement to hand write instructions or write reports; and
able to sustain concentration and attention for 2 hour
periods.
(Tr. 80, 81).
A claimant’s RFC is “an assessment of an individual’s ability to do
sustained work-related physical and mental activities in a work setting on a
regular and continuing basis.” SSR 96-8p, 1996 WL 374184, at *1. It is an
“administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her

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capacity to do work-related physical and mental activities.” SSR 96-8p, 1996 WL
374184, at *2. It represents the most, not the least, a claimant can still do
despite his or her limitations. 20 C.F.R. § 404.1545; SSR 96-8p, 1996 WL
374184, at *2 (emphasis added). The RFC assessment is based on “all of the
relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). In assessing
a claimant’s RFC, the ALJ must consider only limitations and restrictions
attributable to medically determinable impairments, i.e., those that are
demonstrable by objective medical evidence. SSR 96-8p, 1996 WL 374184, at
*2. Similarly, if the evidence does not show a limitation or restriction of a specific
functional capacity, the ALJ should consider the claimant to have no limitation
with respect to that functional capacity. Id. at *3. The ALJ is exclusively
responsible for determining an individual’s RFC. 20 C.F.R. § 404.1546(c).
Barnhart asserts that the RFC was not supported by substantial evidence
because the ALJ did not give great weight to all the opinions of Dr. Blaine Crum,
Ph. D., Dr. John Davis, Ph. D., and Dr. John Yager, M.D., did not adopt their
opinions in toto, and did not include all of the restrictions assigned by them in
formulating Barnhart’s RFC. With regard to Dr. Crum, Barnhart argues that the
ALJ’s RFC assessment did not properly take into consideration his opinion that
Barnhart “would face many challenges to employment due to reported
forgetfulness in daily routines and problems in recall of learned material.” (Doc. 9
at pp. 4-5). With regard to Dr. Yager, Barnhart argues that the ALJ did not
properly consider his opinion that Barnhart “would only be capable of sedentary
activities and would have difficulty computing using the right hand with fine motor

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skills.” (Doc. 9 at p. 5). Barnhart does not point to a specific position of Dr. Davis
that he feels the ALJ did not take into consideration. Contrary to Barnhart’s
assertions, however, the ALJ did take into consideration the limitations noted by
Dr. Crum and Dr. Yager and delineated in detail the reasons for each element of
Barnhart’s RFC. See supra, at pp. 8-15.
It is well-settled that the ultimate responsibility for determining a claimant’s
RFC, in light of the evidence presented, is reserved to the ALJ, not to the
claimant’s physicians or other experts. See 20 C.F.R. § 404.1546. “[T]he ALJ will
evaluate a [physician’s] statement [concerning a claimant’s capabilities] in light of
the other evidence presented and the ultimate determination of disability is
reserved for the ALJ.” Green v. Soc. Sec. Admin., 223 F. App’x 915, 923 (11th
Cir. 2007); see also Pritchett v. Colvin, Civ. A. No. 12-0768-M, 2013 WL
3894960, at *5 (S.D. Ala. July 29, 2013) (holding that “the ALJ is responsible for
determining a claimant’s RFC”). “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.’” Jones v. Colvin, CA 14-00247-C, 2015 WL 5737156, at *23 (S.D. Ala.
Sept. 30, 2015) (quoting Ricks v. Astrue, No. 3:10-cv-975-TEM, 2012 WL
1020428, at *9 (M.D. Fla. Mar. 27, 2012) (internal quotation marks and citations
omitted)).
A review of the entire record reveals that the ALJ was presented with
multiple opinions regarding Barnhart’s limitations. In this case, as set forth above,
the ALJ discussed the medical evidence in detail, including the weight accorded

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to the medical opinion evidence and the grounds therefor. The ALJ also
described the information provided by Barnhart in his Function Report and at the
hearing concerning his limitations and activities, and she explained her reasons
for finding that Barnhart’s allegation of inability to work because of his subjective
complaints was not entirely credible. The ALJ made reference to the medical
findings, as well as other evidence, in assigning additional limitations to
Barnhart’s RFC, such as limiting the use of his right upper extremity and limiting
him to simple routine tasks involving no more than simple, short instructions. See
Tr. 81-91, 655-65. Having reviewed the evidence and considered the arguments
made by Barnhart and being mindful of the admonishment that the reviewing
court may not reweigh the evidence or substitute its judgment for that of the
Commissioner, the Court finds that the RFC assessment made by the ALJ was
supported by substantial evidence. The opinions of Dr. Crum, Dr. Davis, and Dr.
Yager, along with other evidence in the record, constitutes substantial evidence
supporting the ALJ’s RFC assessment, as well as her final decision.
CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 7th day of February, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

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