Howard v. Colvin

Filing 17

Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability and disability insurance benefits income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 7/31/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TOMMIE LEE HOWARD,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

Civil Action No. 2:13-00140-B

ORDER
Plaintiff

Tommie

Lee

Howard

(hereinafter

“Plaintiff”)

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying his claim for a
period

of

disability

and

disability

insurance

benefits

under

Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
On April 15, 2014, the parties consented to have the undersigned
conduct any and all proceedings in this case. (Doc. 13).
the

action

was

referred

to

the

undersigned

to

Thus,

conduct

all

proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
careful

consideration

of

the

administrative

record

and

Upon
the

memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.
I.

Procedural History
Plaintiff protectively filed an application for a period of

disability and disability insurance benefits income on September
8, 2009. (Doc. 15 at 1; Tr. 105-08).

Plaintiff alleges that he

has been disabled since June 19, 2009 due to a back injury,
carpal tunnel syndrome, feet problems, arthritis in his knees,
and high cholesterol. (Tr. 144).

Plaintiff’s applications were

denied and upon timely request, he was granted an administrative
hearing

before

Administrative

Law

Judge

Jerome

L.

Mumford

(hereinafter “ALJ”) on May 9, 2011. The hearing was attended by
Plaintiff, his attorney, and a vocational expert (hereinafter
“VE”). (Id., at
unfavorable

34).

decision

(Id., at 13-26).

On

June

finding

20,

that

2011,

the

Plaintiff

is

ALJ
not

issued

an

disabled.

The Appeals Council denied Plaintiff’s request

for review on January 25, 2013. (Id., at 1-3).

Thus, the ALJ’s

decision dated June 20, 2011 became the final decision of the
Commissioner.

The parties waived oral argument (Docs. 14, 16),

and agree that this case is now ripe for judicial review and is
properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).
II.

Issue on Appeal
Whether substantial evidence supports the ALJ’s
RFC assessment.

III. Factual Background
Plaintiff was born on November 25, 1955, and was 55 years
of age at the time of his administrative hearing on September

2

16, 2010. (Tr. 49).

Plaintiff testified at the hearing that he

graduated from high school and worked for the city of Demopolis,
Alabama for 26 years.

According to Plaintiff, during the last

15 - 18 years with the city, he worked as a street sweeper.
(Id., at 33, 36).

Plaintiff testified that he retired from the

city in January 2009, and although he found another job, he quit
the job in June 2009 because he hurt his back in April 2009.
(Id., at 50).

Plaintiff testified that on a regular day, his

lower back pain is an eight (8) out of ten (10) on the pain
scale and it radiates down to his left leg in varying degrees of
severity. (Id., at 37-38). He also testified that he cannot
perform any work, including a job that would allow him to sit or
stand even without any lifting due to the pain in his back.
(Id., at 42-43).
On Plaintiff’s function report, he reported that his daily
activities
grooming,

include
watching

taking

care

television,

of

his

feeding

personal

his

dogs,

needs

and

raising

his

chickens, and watching the news. (Id., at 135, 139).

He further

reported that he has no limitations with regard to his personal
care,

that

he

prepares

breakfast,

sandwiches,

and

frozen

dinners, that he washes dishes daily, and that he drives a car.
(Id., at 136-37).

Plaintiff also reported that he is able to

lift up to 45 – 50 pounds. (Id., at 140).
In

addition

to

the

foregoing

3

facts,

the

ALJ

made

the

following relevant findings:
3. The claimant has the severe impairments of back
pain
and
carpal
tunnel
syndrome
(20
CFR
1
404.1520(c)) .
The claimant’s prior treatment history reflects
nerve conduction studies from 2008 that revealed
findings indicative of mild right ulnar neuropathy
across
the
elbow,
compatible
with
but
not
indicative of right medial neuropathy at the wrist.
The
claimant
subsequently
underwent
right
endoscopic carpal tunnel release and right ring
finger
trigger
release
to
address
ongoing
complaints of right hand pain and paresthesia. No
surgical complications were indicated…
Medical records for DCH Medical Center beginning in
May 2009 reflect the claimant was treated for low
back pain subsequent to injuring his back while
cutting/lifting firewood in April 2009.
The
treatment notes indicated the claimant’s pain level
was increasing and remained unabated with pain
medications.
An x-ray of the lumbar spine taken
May 2, 2009 revealed straitening of the lumbar
spine was present.
There was no evidence of
fracture
of
subluxation.
Disc
space
and
intervertebral
body
heights
were
normal.
The
claimant underwent an intrathecal injection/lumbar
myelogram followed by a CT scan in July 2009.
Findings from the CT revealed the claimant had a
left-sided disc bulge or protrusion, which filled
the left neural foramina resulting in the crowding
of the nerve root as it exited the neural foramen.
No spinal stenosis was identified.
The remainder
of the study demonstrated mild disc bulge in the
lower lumbar spine without evidence of foraminal
stenosis or spinal stenosis. X-rays of the lumbar
1

The ALJ also determined that Plaintiff has not engaged in
substantial gainful activity since June 19, 2009, and that he
does not have an impairment or combination of impairments that
meets or medically equals any of the listed impairments
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id., at
16, 18).

4

spine also taken in July 2009 revealed no acute
abnormality. The claimant’s diagnosis included low
back pain, left lower extremity radiculitis, L4-5,
L5-S1 disc abnormality, and failure of conservative
care…
Records from the SpineCare Center reflect the
claimant was referred for evaluation, testing and
consideration of injection therapy on May 5, 2009
in relation to complaints of low back pain
subsequent to cutting/lifting firewood in April
2009.
The claimant described his pain as aching,
stinging, sharp, severe, and constant in nature.
On a pain scale of 1 to 10, his pain level was
rated as an 8/10 and at a 10/10 at its worst. The
report
noted
the
claimant
experienced
pain
radiation into the lateral aspect of the left lower
extremity.
The objective findings of the report
showed his lumbar examination was normal to
inspection.
Range of motion testing revealed he
experienced increased pain with flexion at 45
degrees.
There was palpation tenderness in the
mid-lumbosacral region and left paraspinous muscles
with increased tone.
Examination of the bilateral
upper and lower extremities revealed no atrophy or
edema.
His hand grasp was 5/5.
Strait leg raise
was negative but with increased pain to the low
back at 90 degrees. Muscle strength was 4/5 in the
left leg and 5/5 in the right leg. The diagnostic
impressions of the claimant included low back pain;
left extremity radiculitis; probable lumbar disc
herniation; and failure of conservative treatment.
The claimant under a L4-5 and L5-S1 transforaminal
epidural injection with fluoroscopy on May 14, 2009
and a caudal epidural injection under fluoroscopy
with intraoperative epidurogram on May 28, 2009
without complication.
Treatment notes dated May
29, 2009 reflect the claimant presented with
complaint of a constant dull aching pain in his
left lower extremity radiating down to his left
ankle as well as low back pain subsequent to
lifting a heavy log firewood in April 2009.
The
treatment note indicates the claimant stated his
back pain had improved. His pain level at the time
was noted at 5/10 and had ranged from a level 2/10
to a level 8/10 during a two-week period.
He
reported his primary problems involved bending and

5

lifting. He also reported he had received previous
treatment for prior back problems.
He reported
taking medication intermittently.
His treatment
plan
consisted
of
therapeutic
exercises
and
modalities for pain control…
Treatment records from July 2009 reflect the
claimant presented for a lumbar CT myelogram.
He
complained of ongoing low back pain since April
2009. The claimant’s pain was described as aching,
stinging, sharp, severe, and constant in nature.
He had also developed left leg numbness. His pain
level was rated at an 8/10 and at a level 10/10
when at its worst. The treatment records indicated
the claimant had previously received epidural
injection
therapy.
Findings
upon
physical
examination revealed a normal lumbar examination.
The claimant’s range of motion showed increased
pain with flexion, lying to sitting. The bilateral
lower extremities were without edema, erythema or
atrophy.
Sensation was normal and straight leg
raising was negative but caused increased pain of
the low back at 90 degrees.
Muscle strength was
4/5 in the left leg and 5/5 in the right leg.
Diagnostic impression of the claimant included low
back pain; left extremity radiculitis; L4-L5 left
foraminal disc protrusion resulting in impingement
of the exiting left L4 nerve; at L5-S1 left
paracentral/foraminal annular tear likely with a
mild bulge resulting in mild left neural foraminal
narrowing; and a failure of conservative treatment.
The claimant received Toradol and Robaxin for
muscle spasms and pain…
An initial office visit treatment record from West
Alabama Neurosurgery dated August 5, 2009 reflects
the claimant presented with a history of back and
leg discomfort that had been treated with a
combination of epidurals and physical therapy. The
record noted, however, the claimant’s symptoms had
shown improvement with the combination therapies
and that the claimant reported he felt better. He
stated he only rarely experienced leg discomfort
and some paresthesia and that he was not taking any
narcotics
or
prescription
medications.
The
treatment record included an assessment of the
claimant’s MRI which revealed a foraminal disc

6

bulge at L4-5 with some superior migration abutting
the LS nerve root in the neural foramen. A physical
examination summary showed the claimant had 5/5
strength with hip flexion. His deep tendon reflexes
were symmetric at the knees. Straight leg raising
was negative and no obvious sensory abnormalities
were observed. Given how well the claimant was
doing, a continued conservative course of treatment
was recommended rather than surgery…
…
(Id.,

at

16-17).

With

respect

to

Plaintiff’s

RFC,

the

stated as follows:
After careful consideration of the entire record, I
find that the claimant has the residual capacity to
perform
medium
work
as
defined
in
20
CFR
404.1567(c) except the claimant is limited to
occasional
climbing,
bending
and
left
lower
extremity pushing/pulling; and no unrestricted
heights.
In making this finding, I have 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.
I have also considered
opinion
evidence
in
accordance
with
the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 965p, 96-6p, and 06-3p.
I
have
reviewed
the
claimant’s
subjective
complaints
in
accordance
with
the
guidelines
provided by Social Security Ruling 96-7p.
I have
also taken into consideration the controlling case
law in the Eleventh Circuit regarding the standard
used to assess subjective complaints of pain and
other subjective symptoms.
This standard requires
“(1) evidence of an underlying medical condition
and either (2) objective medical evidence that
confirms the severity of the alleged pain arising
from the condition or (3) that the objectively
determined medical condition is of such severity
that it can reasonably be expect to give rise to
7

ALJ

the alleged pain.” Holt v. Sullivan, 921 F.2d 1221
(11th Cir. 1991).
…
After careful consideration of the evidence, I find
that
the
claimant’s
medically
determinable
impairments could reasonably be expect to cause the
alleged
symptoms;
however,
the
claimant’s
statements concerning the intensity, persistence
and limiting effects of these symptoms are not
fully credible to the extent they are inconsistent
with
the
above
residual
functional
capacity
assessment.
In terms of the claimant’s alleged symptoms and
physical limitations, I do not consider them to be
wholly credible.
Although the claimant testified
he
experienced
disabling
limitations
due
to
physical
impairments,
the
totality
of
the
evidentiary
record
does
not
support
those
allegations.
While the clinical findings of the
medical record reflect the claimant experiences
some limitations due to his physical impairments,
the preponderance of the evidence does not support
a conclusion that the claimant’s limitations are as
severe as alleged or that his impairments are
disabling to the extent he is unable to perform all
substantial
gainful
activity.
The
claimant
reported in his Adult Function Report…he required
no assistance with his personal care, he was able
to go outside daily, prepare something to eat, wash
dishes, make the bed, take care of pet chickens and
dogs, watch television, walk, and drive a car.[ ]
Moreover, claimant’s statements are not fully
credible in the light of the medical history, the
medical reports of the treating physicians, and the
clinical findings made on examination. In this
case,
the
overall
findings
upon
physical
examination reflect the claimant had a normal
bipedal gate. He stood with a right lateral shift
that was easily corrected manually. He demonstrated
active range of motion of the lumbar spine to have
a minimal restriction for flexion. Transitional
motions were easily done and his neurologic status
was intact. There was no significant edema,
8

erythema, atrophy or sensory deficits noted. To the
extent the claimant alleges problems with walking,
there was no indication in the evidentiary record
the claimant required an assistive device for
ambulation.
Further, the descriptions of the
symptoms and limitations which the claimant has
provided throughout the record have generally been
vague, unpersuasive, and somewhat contradictory.
Although
the
claimant
testified
he
underwent
surgery on his right hand he could not remember
when it occurred.
He could not remember when he
underwent eye surgery.
He initially testified the
surgery was on his left eye and then later
testified the surgery was performed on his right
eye.
Consideration
of
the
record
shows
the
treatment
received
for
his
alleged
disabling
impairments have been essentially routine and/or
conservative in nature and not reflective of the
type of care generally expected for a totally
disabled
individual.
In
fact,
the
claimant’s
treating physician[] recommended against surgery
and continuances with physical therapy.
Given the
claimant’s allegations of disabling symptoms, it is
reasonable to expect some indication in the
treatment records of some ongoing restrictions
placed on the claimant by a treating doctor;
however, a review of the evidentiary record in this
case reveals no such restrictions recommended by a
treating doctor that would preclude the performance
of substantial gainful activity. Thus, I have
considered the claimant’s subjective allegations to
the fullest extent possible given the objective
medical evidence in the record and find that no
treating physician has placed any restrictions on
the claimant inconsistent with the above residual
functional capacity…
(Id., at 20-23).
The

ALJ

also

discussed

the

weight

he

assigned

to

the

opinions of Plaintiff’s treating physicians and his reasons for
doing so.

He explained:

As for the opinion evidence, and in light of the
documentary record[,] I assign persuasive weight to

9

the opinions of the claimant’s treating physicians.
I take note that none of the treatment records of
the claimant’s treating physicians indicated that
the claimant experienced pain or other subjective
symptomatology to such a degree as to render him
totally disabled, and there are no treatment notes
that placed such significant exertional, postural,
or environmental restriction on him that would
preclude all forms of substantial gainful activity…
Moreover, the objective medical opinions provided
are not inconsistent with the residual functional
capacity discussed herein.
(Id., at 24).
Finally,

the

ALJ

relied

upon

the

VE’s

testimony

and

concluded that Plaintiff is not capable of performing his past
work as a street sweeper. (Id., at 24).
VE’s

testimony,

the

ALJ

concluded

Consistent with the

that

that

considering

Plaintiff’s residual functional capacity for a reduced range of
medium work, as well as his age, education, and work experience,
there

are

other

Plaintiff

is

jobs

able

to

existing

in

the

perform,

such

as

packer, and deliverer. (Id., at 25-26).

national

economy

that

grocery

bagger,

hand

Thus, the ALJ concluded

that Plaintiff is not disabled. (Id., at 26).

IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

one.

The

10

Court’s

review

is

limited

to

determining

1)

whether

the

decision

of

the

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.2 Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).

A court may not decide the facts anew,

reweigh the evidence, or substitute its judgment for that of the
Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
1986).

The Commissioner’s findings of fact must be affirmed if

they are based upon substantial evidence. Brown v. Sullivan, 921
F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence
is

defined

as

preponderance”
reasonable

“more
and

person

conclusion.”).

than

a

consists

of

would

In

accept

determining

scintilla,
“such
as

but

relevant
adequate

whether

less

than

evidence
to

as

support

substantial

a
a
a

evidence

exists, a court must view the record as a whole, taking into
account

evidence

favorable,

Commissioner’s decision.

as

well

as

unfavorable,

to

the

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability

2

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

11

benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 3 20 C.F.R.

3

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (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.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
12

§§ 404.1520, 416.920.
In this case, Plaintiff challenges the ALJ’s RFC assessment
and argues that the record is devoid of any RFC assessment from
an

examining

Commissioner’s

physician.

because

the

decision
ALJ

assessment

in

response,

the

determination
including

the

prepared.

his

He

to

should

include

assessment.

Commissioner
is

contends

benefits

denying

failed
RFC

further

supported

functional

10

reversed

at

4-6).

In

the

that

substantial

limitation

be

the

function-by-function

(Doc.

contends
by

a

that

ALJ’s

RFC

record

report

evidence,

that

Plaintiff

The Commissioner also contends that the ALJ’s RFC

determination encompasses his function-by-function assessment as
he specifically incorporated the statutory definition of medium
work

in

his

RFC

finding;

thus,

he

made

implicit

findings

regarding Plaintiff’s ability to lift, carry, sit, stand, or
walk. (Doc. 11 at 6-12).
An administrative hearing before an ALJ is not adversarial
in nature.

Thus, it is well-established that a claimant bears

the burden of proving disability and for producing evidence in
support of his claim while the ALJ has “a basic duty to develop
a full and fair record.” Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003) (per curiam); Ingram v. Comm’r of SSA, 496
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

13

F.3d 1253, 1269 (11th Cir. 2007).

This duty to develop the

record exists even when the claimant is represented by counsel.
Brown

v.

Shalala,

44

F.3d

931,

934

(11th

Cir.

1995).

In

fulfilling the duty to conduct a full and fair record, the ALJ
is not required to order a consultative examination unless the
record establishes that such is necessary to enable the ALJ to
render a decision. Holladay v. Bowen, 848 F.2d 1206, 1210 (11th
Cir. 1988) (the ALJ is not required to order a consultative
examination and has discretion to order such an exam only when
necessary);

see

also

Ingram,

496

F.3d

at

1269

(“The

administrative law judge has a duty to develop the record where
appropriate

but

is

not

required

to

order

a

consultative

examination as long as the record contains sufficient evidence
for

the

administrative

decision.”);

law

judge

to

make

an

informed

Good v. Astrue, 240 Fed. App'x 399, 404 (11th Cir.

2007) (rejecting claim that ALJ reversibly erred in failing to
order

an

physician

additional
had

consultative

recommended

an

examination

additional

because

consultation

and

no
the

record contained sufficient evidence to permit the ALJ’s RFC
determination).
The RFC is a measure of what a claimant can do despite his
credible limitations. See 20 C.F.R. § 404.1545.

Determinations

of a claimant’s residual functional capacity are reserved for
the ALJ, and the assessment is to be based upon all the relevant

14

evidence of a claimant’s remaining ability to work despite his
impairments.

See

Beech

v.

Apfel,

100

F.

Supp.

2d

1323,

1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546 and Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
determination

necessarily

must

be

supported

An ALJ’s RFC

by

substantial

evidence.
Based upon a review of the record, the undersigned finds
that

Plaintiff’s

evidence

upon

contention

which

to

that

make

an

the

ALJ

informed

lacked

sufficient

decision

regarding

Plaintiff’s limitations – due to the absence of a consultative
examination – is incorrect.

The ALJ had sufficient evidence to

accurately assess Plaintiff’s impairments.
the

ALJ

provided

a

thorough

analysis

of

As outlined supra,
Plaintiff’s

medical

treatment, including the treatment Plaintiff received from Drs.
Robidoux, Shepphard, Spruill, and Buckley.
the

fact

that

none

of

Plaintiff’s

The ALJ highlighted

treating

physicians

ever

opinioned that Plaintiff was disabled nor did they place any
limitations on Plaintiff greater than or at odds with the RFC
assessment.
Further, as noted by the ALJ, when Plaintiff was examined
at West Alabama Spine in August 2009, only three months after
his April 2009 back injury, he reported that he “fe[lt] much
better”,

that

he

only

rarely

experienced

leg

discomfort

and

paresthesia, and that he was no longer taking any narcotics or

15

prescription medication.

Upon observation, Plaintiff’s straight

leg raising was negative and no obvious sensory abnormalities
were observed. (Id., at 213).

Dr. McKenzie recommended that

Plaintiff continue with the conservative treatment that he had
been

receiving,

and

opined

that

surgery

would

not

be

of

significant benefit to Plaintiff unless his pain were to “recur
with vengeance”. (Id., at 213).

The record contains no evidence

that Plaintiff ever sought further treatment for his back pain.
Additionally, the record contains the results of a number
of X-rays, CT scans, and MRIs, none of which identified any
significant

problems

that

required

more

than

conservative

treatment and physical therapy, except Plaintiff’s 2008 right
hand surgery. (Id., at 213).

The ALJ also had the benefit of

Plaintiff’s subjective account of his limitations, including his
written function report. (Id., at 135, 139)4.
While Plaintiff challenges the ALJ’s determination that he
is able to meet the statutory exertional requirements of medium
work, which is the ability to lift no more than 50 pounds at a
4

When determining a claimant’s RFC assessment, the ALJ is
permitted to rely on any evidence of record, including a
claimant’s subjective statement, that is supported by the
objective medical evidence and the record as a whole. Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (as the finder of
fact, the ALJ has a particularly wide latitude to evaluate the
credibility of testimony). As required, in this case, the ALJ
specifically articulated his reasoning for discrediting the
inconsistent portions of Plaintiff’s subjective account of his
limitations.

16

time with frequent lifting or carrying of objects weighing up to
25

pounds,

requires

a

–

the

determination

consultative

of

evaluation

which
–

supports the ALJ’s RFC determination.

the

Plaintiff
evidence

contends
of

record

Indeed, Plaintiff himself

reported that he is able to lift 45 – 50 pounds. (Id., at 140).
Additionally,

Plaintiff

reported

and/or

testified

that

on

a

weekly basis he is able to drive a car, prepare meals, and visit
his mother, and on a daily basis, he is able to care for his
personal needs, make his bed, go outside, and care for his pet
chickens

and

dogs.

(Id.,

at

53,

35-39).

In

light

of

the

foregoing, the undersigned finds that the evidence before the
ALJ was sufficient to allow him to render an informed decision
regarding

Plaintiff’s

limitations;

thus,

the

required to order a consultative examination.
clear

that

the

ALJ

copiously

evaluated

all

ALJ

was

not

Further, it is
of

the

evidence

before him in determining Plaintiff’s RFC and concluded that
Plaintiff is capable of performing a reduced range of medium
work.

Thus, the ALJ’s findings are supported by substantial

evidence of record.
Plaintiff’s

other

assignment

of

error

is

that

the

ALJ

failed to include a “function-by-function assessment” in his RFC
finding as required by Social Security Ruling 96-8p. (Doc. 10 at
5).
first

In accordance with SSR 96-8p, the “RFC assessment must
identify

the

individual’s

17

functional

limitations

or

restrictions

and

assess

function-by-function

his...work-related

basis….

Only

after

abilities

that

may

on
RFC

a
be

expressed in terms of the exertional levels of work, sedentary,
light, medium, heavy, and very heavy.” SSR 96-8p, at 1.

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 968p 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
capacity.
Freeman v. Barnhart, 220 Fed. App’x 957, 960 (11th Cir.
2007).

The Freeman decision makes clear that “[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

18

the claimant to a certain level of exertional activity,

the

Eleventh Circuit [has] found that the ALJ complied with the
requirements of SSR 96-8p.” Warren v. Astrue, 2010 U.S. Dist.
LEXIS 85836, at *18, 2010 WL 3294186 (N.D. Ga. Jul. 14, 2010)
(citing Freeman, supra), report and recommendation adopted, 2010
U.S.

Dist.

LEXIS

85887,

2010

WL

3294182

(N.D.

Ga.

Aug.

20,

2010); cf. Hall v. Astrue, 2010 U.S. Dist. LEXIS 64704, at *21,
2010 WL 2643565 (S.D. Ala. Jun. 29, 2010) (“In Freeman. . ., the
Eleventh

Circuit

specific[ally]

held

and

that

an

explicit[ly]’

ALJ’s

set

failure

forth

his

to

findings

‘more
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 that the
ALJ could have been more specific and explicit in his findings
with

respect

to

Plaintiff’s

functional

limitations

related abilities on a function-by-function basis.

and

work-

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

Plaintiff claimed. (Tr. 16-24).

the

level

of

disability

Moreover, the ALJ’s analysis of

the evidence and his specific determination that Plaintiff is
capable of performing a reduced range of “medium work as defined
in 20 CFR 404.1567(c)” is an implicit indication of the work-

19

related
This

activities

is

he

particularly

found
true

Plaintiff
given

that

capable
the

of

ALJ

performing.

also

limited

Plaintiff to “occasional climbing, bending and left lower leg
extremity pushing/pulling; and no unrestricted heights” based on
Plaintiff’s medical records. (Id., at 20).
proposed

a

hypothetical

to

the

VE

that

Finally, the ALJ
accurately

outlined

Plaintiff’s RFC for a reduced range of medium work, as well as
his age, education, and work experience and VE identified the
medium, unskilled jobs of grocery bagger, hand packager, and
deliverer as jobs which exists in significant numbers in the
national

economy

that

persons

with

Plaintiff’s

RFC,

age,

education and work experience could perform. (Id., at 57-58).
Accordingly, like the Eleventh Circuit in Freeman, this Court
finds

that

“the

ALJ

adequately

analyzed

and

described

[Plaintiff’s] functional capacity.” 220 Fed. App’x at 960.
such,

the

ALJ’s

failure

function-by-function

to

provide

assessment

of

a

more

Plaintiff’s

As

comprehensive
limitations

is

harmless. Id.
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period of disability and disability insurance benefits income be

20

AFFIRMED.
DONE this 31st day of July, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

21