Foster v. Astrue
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 8/9/2013. (eec)
Foster v. Astrue
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
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. 20 & 21 (“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.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of the parties at the July 22, 2013 hearing before the Court, it is
determined that the Commissioner’s decision denying benefits should be affirmed.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 20 & 21 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
Plaintiff alleges disability due to degenerative disc disease and chronic low back
pain. The Administrative Law Judge (ALJ) made the following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2013.
The claimant has not engaged in substantial gainful activity since
September 1, 2009, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairments: degenerative
disc disease and chronic low back pain (20 CFR 404.1520(c) and
A State agency directed consultative evaluation revealed the presence of
the noted impairments. The record, at that point, was void of any
evidence of any impairment. The consultant further advised that the
claimant would be unable to perform any kind of heavy labor. Based on
the consultant’s opinion, as well as the remaining evidence of record, the
undersigned finds that the claimant’s severe impairments are more than
slight abnormalities that cause more than slight limitation in his ability to
perform physical work activity. Accordingly, the highlighted impairments
At different points in the claims process the claimant has also alleged
abdominal impairment/pain, and numbing and tingling affecting his
right hand. He failed to mention abdominal pain during the consultative
examination. He also failed to mention such pain when he testified. He
visited the emergency room twice after the consultative evaluation—this
is the only other medical evidence of record.
He did not mention his hand during either visit. One emergency room
visit concerned his abdominal pain. However, he advised treating
personnel that the pain was mild. Radiological diagnostic measures failed
to reveal any abdominal impairment. He received minimal treatment and
was discharged. During his second emergency room visit, he did not
complain of any abdominal pain. He also failed to mention any abdominal
pain when he testified.
The undersigned has reviewed the evidence of record and finds that there
is no medically determined basis for his complaints regarding his hand or
abdomen. In the alternative the undersigned notes that assuming some
infrequent symptoms consistent with his reports, the evidence or record
indicates that his symptoms reflect, at best, slight abnormality, that causes
little, if any, limitation in his capacity for work activity. They are therefore
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).
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
the full range of light work as defined in 20 CFR 404.1567(b) and
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 416.929 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 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—
i.e., an impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques—that could reasonably be expected
to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning. For this purpose, whenever
statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical
evidence, the undersigned must make a finding on the credibility of the
statements based on a consideration of the entire case record.
The claimant asserts that he suffers with back problems that cause pain
and weakness. He suffered a back injury. He also experiences stomach
pain. He noted that there were no efforts at any accommodation prior to
his conclusion that he could no longer work. He also completed a report
regarding his pain. He advised that lower back pain began when he
served in the Navy. He did not provide dates. He advised that the pain
radiates down his right leg. It does not spread to any other location.
Prolonged standing, sitting, and walking exacerbate the pain. The pain is
constant “but not a[s] bad all the time”. He takes no prescription
medication for his pain. He uses over-the-counter medication two-to-three
times a day. He has used these medications for about a year. Nevertheless,
despite using the medications for a year, they do not provide relief. They
do not cause side effects. He does not use any assistive device to relieve
pain. Pain began to affect his activities about a year before he completed
the form. He completed the form on September 22, 2010.
The claimant asserts that pain began to affect his capacity for work activity
approximately September 2009. However, despite the reported affects, the
claimant opted to use over-the-counter medication for an entire year,
despite the fact that the medication offered no relief. Per his statements, it
should be safe to assume that earnings in 2009—as he did not become
disabled until September thereof—would have been used to procure
medical care and perhaps medication that might relieve his symptoms.
The totality of his presentation strongly suggests that his impairments did
not suddenly prevent him from working in September 2009. However,
just as Agency guidance does not allow his subjective reports to confirm
severe impairment, neither does it allow such a conclusion, or lack
thereof, based solely on the undersigned’s impression of the nonmedical
However, the medical evidence offers no more support for his allegations
than the nonmedical evidence. The disability report requires the claimant
to list all providers relevant to his alleged impairments. The claimant
listed the Boston Medical Center and the Brigham and Women’s
[H]ospital. Both facilities are located in Boston. Of greatest significance,
the claimant reported that he last visited both facilities in 1999.
He did not reference any recent routine, urgent, or emergency care.
Therefore, even if the claimant could not afford medical care, consistent
with his most recent earnings, he clearly made no effort to pursue any care
whatsoever, despite experiencing allegedly disabling pain and limitations.
The State agency contacted another facility, a local facility, on behalf of the
claimant. However, that facility responded that there were no records
regarding the claimant within the period of 2003 through the date of the
request in 2010.
Digressing briefly, the undersigned notes that he did visit an emergency
room this year. However, this does not lend weight to his allegations. To
the contrary, it reflects upon the fact that he sought no such care
contemporary with his pursuit of disability compensation.
The claimant clearly failed in his burden to provide medically
determinable evidence consistent with his allegations. Nonetheless, the
State agency directed a consultative evaluation.
The claimant advised the consultant that he applied for compensation
secondary to back pain. Once again, he reported that pain has lasted for
approximately a year. He reported that he was struck by a car in 1971 and
broke his right leg. There is no evidence of this in the record. However,
the claimant conveniently explained that he did not require surgery nor
was he hospitalized. He knew of no other injury that might affect his back.
Nevertheless, his back hurts all the time and the pain radiates from his
right low back into his leg. He also experiences numbing and tingling
down to his foot. He also reported numbing and tingling in his right hand.
Contrary to his allegation of stomach pain, he made no comment
regarding his stomach.
[The consultant] noted that x-rays of the lumbar spine revealed
degenerative disc disease at L5 on S1 and pronounced on L3-L5
posteriorly. Examination of the claimant’s abdomen was unremarkable.
Examination of his extremities revealed no clubbing, cyanosis or edema.
Neurological examination revealed diffuse 5/5 muscular strength in all
ranges of motion through the upper and lower extremities. He was
hyperflexic at ¾ bilaterally. There was a positive straight leg raise on the
right in a seated position up to about 45 degrees. He was unable to heel or
toe walk. He was able to touch his toes; however, he was very stiff and
had to bend at the knees in order to complete the task. He squat and stood
while holding on to the exam table and had to pull himself back up. His
back was straight. However, there was quite a bit of muscular spasm on
the right paravertebral musculature. Ultimately, he opined that the
claimant suffers low back pain with radicular symptoms with
degenerative disc disease. As noted previously, he advised that the
claimant was not capable of heavy work activity.
[The consultant] did not preclude light work activity as reflected in his
residual functional capacity highlighted above. The State agency denied
his claim. The claimant appealed. Although he did not mention any
symptoms [in] reference [to] his stomach during the consultative
evaluation, he reported that his stomach pain is more severe. Pain level
was six. These changes occurred less than two weeks after his claim was
denied. He did not mention any worsening in his musculoskeletal
impairment. In fact, he did not mention his back at all.
Once again, he reported the use of over-the-counter medication. He did
not report any routine, urgent, or emergency medical care. The claimant’s
actions are not consistent with the content of his appeal.
Despite his original allegations and the representations contained in his
appeal, the evidence reveals that the claimant’s first pursuit of medical
care did not come until April 2011, over two years after alleged onset, and
five months after his appeal. His sole complaint was of abdominal pain. A
review of systems was completed. A review of systems is the phase of an
examination during which the claimant is asked to provide symptoms for
any impairment, even if not related to his allegations. The claimant
reported no musculoskeletal or neurological symptoms. Interestingly, the
record strongly suggests that the claimant was employed. However, that
limited evidence standing alone did not preclude completion of the
As to his reported symptoms, he advised that his maximum and current
pain were both mild. He was specifically asked about back pain and there
is no indication of any. Diagnostic imaging of his abdomen failed to reveal
any abnormality. He was treated and released. It does not appear he was
given any medication and there were no restrictions on his activities. The
claimant’s visit to the emergency room on this occasion detracts greatly
from his allegations. The visit failed to indicate any severe limitation.
Equally as telling it strongly indicates, as noted earlier, that if the claimant
experiences truly troubling symptoms, then he would have sought
medical care; care that up until his next emergency room visit, he  has
failed to seek in relationship to his original allegations.
He did not seek any additional medical care for an additional five months.
He returned to the emergency room on September 6, 2011. The claimant
complained of back pain. However, the notes indicate that there was no
report of chronic history. The claimant advised that onset was the day
before. He also advised that the maximum and current severity of pain
[was] mild with a specific pain score of “5”.
Treating personnel once again completed a review of systems. The
claimant denied abdominal pain. Interestingly, the claimant reported that
he walks frequently and suffers no limitation in mobility. The physician
examined him and noted that he was in no distress. The physical
examination was grossly unremarkable. He was assessed for acute
myofascial lumbar strain. He received injections for pain. He was
discharged home in good condition. He was prescribed Etodolac and
Flexeril. There are no indications of any restrictions on daily or work
The record is void of any additional medical evidence. As noted, the
claimant testified. However, the claimant failed to explain the lack of
medical care that might offer some support for his allegations. The
minimal medical evidence in this case simply does not offer the
undersigned medical determination of impairment or limitation greater
than that suggested by the consultant. The claimant has failed in his
burden to provide medically determinable or even objective evidence
consistent with his allegations.
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
concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.
In sum, the above residual functional capacity assessment is supported by
the State agency consultant’s opinion as well as the total lack of evidence
contrary to his opinion.
The claimant is capable of performing past relevant work as a
security guard. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965).
The vocational expert testified that the claimant has past work as a
security guard. The claimant’s handwritten work history report indicates
that he served as a security guard from 2004 to 2005. However, a review of
his specific employer earnings indicates that he served as a security guard
in 2006. It also suggests that he did not serve in that capacity for an entire
year, as his earnings were only $2,170.50. It also suggests that he worked
in the construction industry during 2004-2005.
While both periods are within the last 15 years, meeting the recency
requirements to find past relevant work, and although the work is
unskilled and would not require more than three months for the claimant
to become proficient—per the vocational expert—the evidence does not
clearly show that he engaged in substantial gainful activities per earnings.
Therefore, while the undersigned believes that he possesses past relevant
work as a security guard, and in comparing the claimant’s residual
functional capacity with the physical and mental demands of this work,
the undersigned finds that the claimant is able to perform it as actually
and generally performed, the undersigned nonetheless asked the
vocational expert to provide examples of other jobs existing in the
economy that he is able to perform.
Therefore, the Administrative Law Judge makes the following alternative
findings for step five of the sequential process.
In the alternative, considering the claimant’s age, education, work
experience, and residual functional capacity, there are other jobs that exist
in significant numbers in the national economy that the claimant can also
In determining whether a successful adjustment to other work can be
made, the undersigned must consider the claimant’s residual functional
capacity, age, education, and work experience in conjunction with the
Medical-Vocational Guidelines, 20 CFR 404, Subpart P, Appendix 2. If the
claimant can perform all or substantially all of the exertional demands at a
given level of exertion, the medical-vocational rules direct a conclusion of
either “disabled” or “not disabled” depending upon the claimant’s
specific vocational profile. When the claimant cannot perform
substantially all of the exertional demands of work at a given level of
exertion and/or has nonexertional limitations, the medical-vocational
rules are used as a framework for decisionmaking unless there is a rule
that directs a conclusion of “disabled” without considering the additional
exertional and/or nonexertional limitations. If the claimant has solely
nonexertional limitations, section 204.00 in the Medical-Vocational
Guidelines provides a framework for decisionmaking. More specifically,
the vocational expert provided the following representational
occupations[:] garment folder (DOT#369.687-018, light, unskilled, 500,000
positions nationally, 13,000 locally); inspector (DOT#559.687-074, light,
unskilled, 400,000 positions nationally, and 9,000 locally); and inserter
(DOT#794.687-058, light, unskilled, 300,000 positions nationally, and 4,000
Based on a residual functional capacity for the full range of light work,
[and] considering the claimant’s age, education and work experience, a
finding of “not disabled” is directed by Medical-Vocational Rule 202.21
and Rule 202.14.
The claimant has not been under a disability, as defined in the
Social Security Act, from September 1, 2009, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).
(Tr. 24-25, 25-26, 26-27, 27-28, 28-30 & 30-31 (internal citations omitted; emphasis in
original).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the
hearing decision became the final decision of the Commissioner of Social Security.
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. Once the claimant meets this burden, as is the arguable case
here,2 it becomes the Commissioner’s burden to prove that the claimant is capable,
given his age, education and work history, of engaging in another kind of substantial
gainful employment, which exists in the national economy. 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 the full range of
light work, and, even more specifically, those light jobs identified by the vocational
expert, 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] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).3
In this case, the plaintiff contends that there is no support for the ALJ’s RFC
assessment—since the record is devoid of any RFC assessment from an examining
physician—and, further, the Commissioner’s decision denying benefits should be
reversed because the ALJ failed to include a function-by-function assessment in his RFC
assessment as required by SSR 96-9p.4
The ALJ in this case “alternatively” reached the fifth step of the Commissioner’s
sequential evaluation process. His actions in reaching the fifth step, based upon his suggestion
that the evidence did not clearly establish that plaintiff engaged in substantial gainful
employment as a security guard, clearly defines for this Court that its analysis should be framed
by step five of the sequential evaluation process.
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).
Included in this second assignment of error is plaintiff’s contention that the ALJ
erred in failing to include additional limitations consistent with Dr. Huey Kidd’s consultative
assessment, namely “any  limitations regarding [plaintiff’s] use of his lower extremities or
Prior to considering the claims of error raised by plaintiff, the Court need set
forth the proper analysis for consideration of RFC “issues” raised in cases like the
right hand.” (Doc. 14, at 12.) The Court does not find this additional argument compelling. First,
insofar as his right hand is concerned, Dr. Kidd only noted that plaintiff complained of “some
numbness and tingling in his right hand” (Tr. 226) but nowhere indicates any positive
examination findings with respect to that hand (Tr. 227). Moreover, the ALJ specifically found
that Foster’s right hand complaints constitute a non-severe impairment (Tr. 25), a finding which
plaintiff does not attack in his brief (see Doc. 14). Because a non-severe impairment is, by
definition, one which does not significantly limit a claimant’s physical abilities to perform basic
work activities, see, e.g., 20 C.F.R. § 404.1521(a) (2013), the ALJ did not err in “failing” to
attribute any limitations to Foster’s right hand. As for the argument directed to plaintiff’s
“lower extremity” complaints, the undersigned finds that the ALJ necessarily attributed such
limitations in this case by finding that Foster was relegated to the performance of the full range
of light work, as opposed, for instance, to the full range of medium work. Compare 20 C.F.R. §
404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you must have the ability
to do substantially all of these activities.”) with 20 C.F.R. § 1567(c) (“Medium work involves
lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up
to 25 pounds.”) and SSR 83-10 (“’Frequent’ means occurring from one-third to two-thirds of the
time. Since frequent lifting or carrying requires being on one’s feet up to two-thirds of a
workday, the full range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the
remaining time. The lifting requirement for the majority of light jobs can be accomplished with
occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in
one location, with the ability to stand being more critical than the ability to walk. They require
use of arms and hands to grasp and to hold and turn objects, and they generally do not require
use of the fingers for fine activities to the extent required in much sedentary work. . . . The
considerable lifting required for the full range of medium work usually requires frequent
bending-stooping. (Stooping is a type of bending in which a person bends his or her body
downward and forward by bending the spine at the waist.) Flexibility of the knees as well as the
torso is important for this activity. (Crouching is bending both the legs and spine in order to
bend the body downward and forward.) However, there are a relatively few occupations in the
national economy which require exertion in terms of weights that must be lifted at times (or
involve equivalent exertion in pushing or pulling), but are performed primarily in a sitting
position, e.g., taxi driver, bus driver, and tank-truck driver (semiskilled jobs). In most medium
jobs, being on one’s feet for most of the workday is critical. Being able to do frequent lifting or
carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to
50 pounds at a time.”). This determination is bolstered by the hypothetical posed to the
vocational expert at the hearing—a hypothetical to which no objection was interposed during
the hearing (Tr. 47) nor in plaintiff’s brief filed in this Court (see Doc. 14)—which assumed an
individual with “the exertional capabilities and limitations reflected in the consultative
examination of Doctor Huey Kidd,” (Tr. 47) and the VE’s answer wherein she identified several
light, unskilled jobs that such hypothetical person could perform (id. at 47-48).
instant one. The Eleventh Circuit has made clear that “[r]esidual functional capacity, or
RFC, is a medical 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.” Peeler v. Astrue, 400 Fed.Appx. 492, 493 n.2 (11th Cir. Oct. 15,
2010), citing 20 C.F.R. § 416.945(a). Stated somewhat differently, “[a] claimant’s RFC is
‘that which [the claimant] is still able to do despite the limitations caused by his . . .
impairments.’” Hanna v. Astrue, 395 Fed.Appx. 634, 635 (11th Cir. Sept. 9, 2010), quoting
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). “In making an RFC
determination, the ALJ must consider all the record evidence, including evidence of
non-severe impairments.” Hanna, supra (citation omitted); compare 20 C.F.R. §§
404.1545(a)(1) & 416.945(a)(1) (2011) (“We will assess your residual functional capacity
based on all the relevant evidence in your case record.”) with 20 C.F.R. §§ 404.1545(a)(3)
& 416.945(a)(3) (“We will assess your residual functional capacity based on all of the
relevant medical and other evidence.”).
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC, a deep-seated principle of Social Security law, 20 C.F.R. § 404.1546(c)
(“If your case is at the administrative law judge hearing level under § 404.929 or at the
Appeals Council review level under § 404.967, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals Council makes
a decision) is responsible for assessing your residual functional capacity.”); see also 20
C.F.R. § 416.946(c) (same), that this Court has never taken issue with. See, e.g., Hunington
ex rel. Hunington v. Astrue, No. CA 08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July
28, 2009) (“Residual functional capacity is a determination made by the ALJ[.]”) (order
adopting report and recommendation of the undersigned). The regulations provide,
moreover, that while a claimant is “responsible for providing the evidence [the ALJ] . . .
use[s] to make a[n] [RFC] finding[,]” the ALJ is responsible for developing the
claimant’s “complete medical history, including arranging for a consultative
examination(s) if necessary,” and helping the claimant get medical reports from his own
medical sources. 20 C.F.R. §§ 404.1545(a)(3) & 416.945(a)(3). In assessing RFC, the ALJ
must consider any statements about what a claimant can still do “that have been
provided by medical sources,” as well as “descriptions and observations” of a
claimant’s limitations from his impairments, “including limitations that result from 
symptoms, such as pain[.]” Id.
In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in
paragraphs (b), (c), and (d) of this section.” 20 C.F.R. §§ 404.1545(a)(4) & 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we
first assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
and then determine your residual functional capacity for work activity on
a regular and continuing basis. A limited ability to carry out certain
mental activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting, may reduce your ability
to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s) which
impose environmental restrictions, may cause limitations and restrictions
which affect other work-related abilities. If you have this type of
impairment(s), we consider any resulting limitations and restrictions
which may reduce your ability to do past work and other work in
deciding your residual functional capacity.
20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d).
Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence. Compare Figgs v.
Astrue, 2011 WL 5357907, *1 & 2 (M.D. Fla. Oct. 19, 2011) (“Plaintiff argues that the ALJ’s
residual functional capacity (‘RFC’) determination is not supported by substantial
evidence. . . . [The] ALJ’s RFC Assessment is [s]upported by substantial record
evidence[.]”), report & recommendation approved, 2011 WL 5358686 (M.D. Fla. Nov. 3,
2011), and Scott v. Astrue, 2011 WL 2469832, *5 (S.D. Ga. May 16, 2011) (“The ALJ’s RFC
Finding Is Supported by Substantial Evidence[.]”), report & recommendation adopted, 2011
WL 2461931 (S.D. Ga. Jun. 17, 2011) with Green v. Social Security Administration, 223
Fed.Appx. 915, 923 & 923-924 (11th Cir. May 2, 2007) (per curiam) (“Green argues that
without Dr. Bryant’s opinion, there is nothing in the record for the ALJ to base his RFC
conclusion that she can perform light work. . . . Once the ALJ determined that no weight
could be placed on Dr. Bryant’s opinion of  Green’s limitations, the only documentary
evidence that remained was the office visit records from Dr. Bryant and Dr. Ross that
indicated that she was managing her respiration problems well, that she had controlled
her hypertension, and that her pain could be treated with over-the-counter medication.
Thus, substantial evidence supports the ALJ’s determination that Green could perform
light work.”). And while, as explained in Green, supra, an ALJ’s RFC assessment may be
supported by substantial evidence even in the absence of an opinion by an examining
medical source about a claimant’s residual functional capacity,5 specifically because of
Despite that this approach has now been espoused by the undersigned since
April of 2012, see, e.g., Thomas v. Astrue, 11-406-C, plaintiffs continue to cite to Coleman v.
Barnhart, 264 F.Supp.2d 1007 (S.D.Ala. 2003) as controlling precedent (see Doc. 14, at 5-6) and the
defendant continues to be enticed into submitting very lengthy (albeit worthless) castigations of
the hearing officer’s rejection of such opinion,6 223 Fed.Appx. at 923-924; see also id. at
923 (“Although a claimant may provide a statement containing a physician’s opinion of
her remaining capabilities, the ALJ will evaluate such a statement in light of the other
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those courts—
including this one—that have staked the position that the 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.7 Compare, e.g.,
Coleman (see Doc. 15, at 6-10). Needless to say, such briefing provides no assistance to the
An ALJ’s articulation of reasons for rejecting a treating source’s RFC assessment
must, of course, be supported by substantial evidence. Gilabert v. Commissioner of Social Security,
396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (“Where the ALJ articulated specific reasons for
failing to give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. In this case, therefore, the critical
question is whether substantial evidence supports the ALJ’s articulated reasons for rejecting
Thebaud’s RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v.
Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) (per
In Green, supra, such linkage was easily identified since the documentary
evidence remaining after the ALJ properly discredited the RFC opinion of the treating physician
“was the office visit records from Dr. Bryant and Dr. Ross that indicated that [claimant] was
managing her respiration problems well, that she had controlled her hypertension, and that her
pain could be treated with over-the-counter medication.” 223 Fed.Appx. at 923-924. Based upon
such nominal clinical findings, the court in Green found “substantial evidence support[ing] the
ALJ’s determination that Green could perform light work.” Id. at 924; see also Hovey v. Astrue,
Civil Action No. 1:09CV486-SRW, 2010 WL 5093311, at *13 (M.D. Ala. Dec. 8, 2010) (“The
Eleventh Circuit’s analysis in Green, while not controlling, is persuasive, and the court finds
plaintiff’s argument . . . that the ALJ erred by making a residual functional capacity finding
without an RFC assessment from a physician without merit. In formulating plaintiff’s RFC in
the present case, the ALJ—like the ALJ in Green—relied on the office treatment notes of
plaintiff’s medical providers.”).
Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582
(S.D. Ala. Dec. 15, 2008), in which a matter is remanded to the Commissioner because the “ALJ’s
RFC determination [was not] supported by substantial and tangible evidence” still accurately
reflect the view of this Court, but not to the extent that such decisions are interpreted to require
that “substantial and tangible evidence” must—in all cases—include an RFC or PCE from a
Saunders v. Astrue, 2012 WL 997222, *5 (M.D. Ala. Mar. 23, 2012) (“It is unclear how the
ALJ reached the conclusion that Plaintiff ‘can lift and carry up to fifty pounds
occasionally and twenty-five pounds frequently’ and sit, stand and/or walk for six
hours in an eight hour workday,  when the record does not include an evaluation of
Plaintiff’s ability to perform work activities such as sitting, standing, walking, lifting,
bending, or carrying.”) with 20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d);
see also 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.”).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision. For example, in
Hanna, supra, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand
and finger movements, overhead reaching, and occasional gross and fine
physician. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination
[was] supported by substantial evidence. [That] record [did] not reveal evidence
that would support an inference that Plaintiff [could] perform the requirements
of light work, and certainly an ALJ’s RFC determination must be supported by
substantial and tangible evidence, not mere speculation regarding what the
evidence of record as a whole equates to in terms of physical abilities.
Id. (citing Cole v. Barnhart, 293 F. Supp.2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony,
is problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying
how often he could perform such tasks, it is unclear how the ALJ
concluded that Hanna could occasionally engage in all forms of hand and
finger movements, gross manipulation, and fine manipulation. . . .
The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return
to his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work.
The ALJ must state the grounds for his decision with clarity to
enable us to conduct meaningful review. The ALJ has not done so here.
To the extent the ALJ based Hanna’s RFC assessment on hearing
testimony by the ME and VE, the assessment is inconsistent with the
evidence. The ALJ did not explicitly reject any of either the ME’s or VE’s
testimony or otherwise explain these inconsistencies, the resolution of
which was material to whether Hanna could perform his past relevant
work. 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 Hanna’s case.”
395 Fed.Appx. at 635-636 (emphasis added and internal citations and footnotes
omitted); see also Ricks v. Astrue, No. 3:10–cv–975–TEM, 2012 WL 1020428, at *9 (M.D.
Fla. Mar. 27, 2012) (“‘The existence of substantial evidence in the record favorable to the
Commissioner may not insulate the ALJ’s determination from remand when he or she
does not provide a sufficient rationale to link such evidence to the legal conclusions
reached.’ Where the district court cannot discern the basis for the Commissioner’s
decision, a sentence-four remand may be appropriate to allow him to explain the basis
for his decision.”) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th
Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”) (citation omitted).
Such linkage, moreover, 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 ALJ’s decision. See, e.g., Durham v. Astrue, Civil Action No. 3:08CV839SRW, 2010 WL 3825617, at *3 (M.D. Ala. Sep. 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. Appx. 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 . . . . 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.”).
In this case, the Court finds that the ALJ linked his RFC assessment—that is, the
full range of unskilled light work—to specific evidence in the record bearing upon
Foster’s ability to perform the physical, mental, sensory and other requirements of
work. There is no question but that in this case the ALJ considered all the evidence or
record (see Tr. 24-31), developed the record by sending plaintiff for a consultative
examination by Dr. Huey Kidd (see Tr. 226-227), and took into account any statements
(or lack thereof) about what Foster can still do provided by medical sources and any
descriptions and observations of limitations from his impairments (compare id. with Tr.
229-248; see Tr. 43-44). The ALJ copiously evaluated all of the foregoing evidence and
unquestionably, in the undersigned’s estimation, linked that evidence to his
determination that plaintiff retains the residual functional capacity to perform the full
range of light work. (See Tr. 24-31.) The ALJ’s RFC determination is particularly
appropriate given the dearth of evidence (see Tr. 226-248), none of which contains any
observations/findings inconsistent with the full range of light work. Indeed, Dr. Huey
Kidd’s sole comment, after examining Foster, was that “it would be very difficult for
th[e] [claimant] to do any kind of heavy labor.” (Tr. 227 (emphasis supplied).)8 Thus,
the undersigned concludes that plaintiff’s first assignment of error is not well taken.
Plaintiff’s other assignment of error is that the ALJ failed to include a “functionby-function assessment” in his RFC finding as required by Social Security Ruling 96-8p.
(Doc. 14, at 9-12.) In accordance with SSR 96-8p, the “RFC assessment must first
identify the individual’s functional limitations or restrictions and assess his . . . workrelated abilities on a function-by-function basis, including the functions in paragraphs
Plaintiff’s suggestion that there is no “medical evidence” to contradict his
testimony regarding the limitations on his abilities to sit, stand and walk (see Doc. 14, at 8) is
simply incorrect, as the ALJ explains at length in his opinion (Tr. 27-29). Indeed, the ALJ
concluded that “the claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity.” (Tr. 29.) In addition, plaintiff’s suggestion that the ALJ relied
upon the RFC determination of a “single decision-maker” (Doc. 14, at 7-8) is incorrect because
nowhere in his decision does the ALJ reference the determination of a “single decision-maker”
(see Tr. 24-31).
(b), (c), and (d) of 20 CFR 404.1545 and 416.945.9 Only after that may RFC be expressed
in terms of the exertional levels of work, sedentary, light, medium, heavy, and very
heavy.” SSR 96-8p, at 1 (footnote added). In ruling on a function-by-function issue
presented to it, a panel of the Eleventh Circuit provided the following guidance:
While the ALJ could have been more specific and explicit in his
findings, he did consider all of the evidence and found that it did not
support the level of disability Freeman claimed. Only after he determined
that she failed to carry her burden of showing that she had become
disabled from performing any of her work-related activities did he state
that she could perform light exertional activity. Therefore, the ALJ
complied with SSR 96-8p by considering Freeman’s functional limitations
and restrictions and, only after he found none, proceeding to express her
residual functional limitations in terms of exertional levels. Furthermore,
the ALJ’s analysis of the evidence and statement that Freeman could
perform light work indicated how much work-related activity she could
perform because “light work requires standing or walking, off and on, for
a total of approximately 6 hours of an 8-hour workday.” SSR 83-10. The
ALJ also told the VE that the hypothetical individuals they were
discussing were limited to light exertional activity. Therefore, the ALJ’s
hypotheticals did have limitations on sitting, standing, and walking. In
sum, the ALJ adequately analyzed and described Freeman’s functional
Freeman v. Barnhart, 220 Fed.Appx. 957, 960, 2007 WL 861140, *2 (11th Cir. Mar. 23,
2007).10 Thus, “[w]here an ALJ considers all of the evidence, determines that the
claimant is not disabled, and also poses a hypothetical to a VE which limits the claimant
to a certain level of exertional activity, [it has been] found that the ALJ complied with
the requirements of SSR 96-8p.” Warren v. Astrue, 2010 WL 3294186, *7 (N.D. Ga. Jul. 14,
Paragraph (b) of 20 C.F.R. §§ 404.1545 and 416.945 specifically provides that “[a]
limited ability to perform certain physical demands of work activity, such as sitting, standing,
walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative
or postural functions, such as reaching, handling, stooping or crouching), may reduce your
ability to do past work and other work.” Id.
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2.
2010) (citing Freeman, supra), report and recommendation adopted, 2010 WL 3294182 (N.D.
Ga. Aug. 20, 2010); cf. Hall v. Astrue, 2010 WL 2643565, *7 (S.D. Ala. Jun. 29, 2010) (“In
Freeman . . ., the Eleventh Circuit held that an ALJ’s failure to ‘more specific[ally] and
explicit[ly]’ set forth his findings with respect to a claimant’s ‘functional limitations and
work-related abilities on a function-by-function basis’ is excusable where it is apparent
the ALJ did ‘consider all of the evidence.’”).
In this case, as in Freeman, there is no question but that the ALJ could have been
more specific and explicit in his findings with respect to Foster’s functional limitations
and work-related abilities on a function-by-function basis. However, the undersigned
finds no reversible error in this regard inasmuch as the ALJ clearly considered all the
evidence of record and found that such evidence did not support the level of disability
Foster claimed. (Tr. 24-31.) Moreover, the ALJ’s analysis of the evidence and his specific
determination that Foster is capable of performing the full range of light work is an
implicit indication of the work-related activities he found Foster capable of performing
because—as previously indicated in this opinion—light work “involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds[,]” 20 C.F.R. § 1567(b), and “the full range of light work requires standing or
walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” SSR
83-10. Finally, Dr. Kidd indicated only that it would be “very difficult” for Foster to
perform “any kind of heavy labor” based upon his objective findings and it was based
upon a hypothetical question incorporating Dr. Kidd’s noted “exertional capabilities
and limitations” (Tr. 47) that the vocational expert identified several light, unskilled jobs
existing in significant numbers in the national economy that the hypothetical individual
could perform (id. at 47-48). Accordingly, like the Eleventh Circuit in Freeman, this
Court finds that “the ALJ adequately analyzed and described [plaintiff’s] functional
capacity.” 220 Fed.Appx. at 960.11
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 9th day of August, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
The plaintiff also suggests in his brief that the ALJ erred in failing to re-contact
Dr. Kidd for clarification regarding his limitations. (Doc. 14, at 12.) At the time of the hearing
decision in this case, October 28, 2011 (Tr. 31), the regulations provided only that medical
sources would be re-contacted when the evidence received from such a source was
“inadequate” for the Administration to determine the question of disability. 20 C.F.R. §
404.1512(e) (2011). Notwithstanding that this subsection is no longer contained in the
regulations, see 20 C.F.R. § 404.1512 (2013), the undersigned finds that the ALJ’s implicit
determination that the evidence received from Dr. Kidd was adequate to determine the
question of Foster’s disability was correct.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?