FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 18, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10766

Non-Argument Calendar

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D. C. Docket No. 05-01120-CV-ORL-31-KRS

JOHN MCDEVITT, 

Plaintiff-Appellant, 

versus 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 18, 2007)

Before BIRCH, CARNES and WILSON, Circuit Judges.

PER CURIAM:

John McDevitt (“McDevitt”) appeals the district court’s order affirming the
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Social Security Commissioner’s (“the Commissioner’s”) denial of a period of

disability, disability insurance benefits, and supplemental security income. See 42

U.S.C. §§ 405(g), 1383(c)(3). On appeal, McDevitt argues that the Administrative

Law Judge (“ALJ”) erred by failing to develop the record with regard to the impact

of the side effects from the medications he was taking. Specifically, he argues that

the ALJ erred in finding that he had not testified that the medications he was taking

caused an extreme lack of concentration. After careful review, we reverse the

district court and remand this case with instructions that it be returned to the

Commissioner for further proceedings consistent with this opinion.

BACKGROUND

In January 2002, McDevitt applied for a period of disability, disability

insurance benefits, and supplemental security income. He alleged that a ruptured

thoracic disc, muscle spasms, loss of the use of his right arm, and extreme pain had

rendered him unable to work as of August 8, 2001. McDevitt’s application was

denied initially and upon reconsideration. McDevitt requested a hearing, and on

June 2, 2004, an ALJ heard his case.

At the hearing, McDevitt testified that he was 50 years old, not working at

that time, and receiving food stamps. McDevitt told the ALJ that on most days he

vomited in the morning, but his stomach usually settled by 10:00 a.m. He would
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occasionally take Benadryl to settle his stomach, but this made him sleepy. 

 McDevitt testified that he had extreme pain in his shoulders, right arm, and

right leg. In addition, three of his fingers and his thumb were numb. He blamed

these problems on a bulging or herniated thoracic disc that was causing his right

arm to shrink. He also had occasional pain in his lower back, during which he had

to lie on the floor and could not stand straight.

McDevitt stated that three or four weeks prior to the hearing he went to the

emergency room due to a seizure. The doctors believed the seizure was caused by

alcohol withdrawal, and they prescribed him Librium to ease the withdrawal

symptoms. McDevitt told the ALJ that Librium caused “extreme lack of

concentration” and made him unsteady on his feet. 

McDevitt testified that in 1989 he worked in boat sales, but was run over by

a boat and ruptured a disc in his neck. He had surgery on his neck in 1990. He

kept working in boat sales until 1993. In 1995 and 1996, he worked in real estate. 

In 1997, he worked for a telemarketing company that went out of business. In

1998 and 1999, he worked in resort marketing, and in 1999 until 2001, he worked

at a sandwich shop. When the ALJ asked if he could do telemarketing again,

McDevitt responded that he didn’t know “because it requires concentration.” He

stated that he definitely could not do boat sales because it was extremely physical,
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and also stated that he could not work in a restaurant. 

McDevitt thought he could lift 20 pounds, stand for an hour, walk for about

an hour, and sit in a straight-backed chair for at least two hours. He had considered

a data entry job, but was inhibited by “the lack of concentration,” pain in his arm,

and nausea. 

Numerous medical records document McDevitt’s back problems, which

were aggravated by a fall in August 2001. His medical records also show that he

had an ongoing problem with alcohol abuse. 

His medical records reflect that in April 2002, McDevitt went to the hospital

complaining of severe pain in his right arm and chest and was admitted for further

evaluation. The examining physician recorded that “he ha[d] been noted to drink

frequently.” While in the hospital, he suffered a seizure that was determined to be

related to alcohol withdrawal. He was given medication, including Librium, and

released after he was stabilized. In May 2002, McDevitt stated in a

Reconsideration Disability Report that an increase in pain had required an increase

in medication that had “severely decreased [his] ability to concentrate” and that he

was currently “unable to concentrate.” 

In September 2002, Dr. William P. Friedenberg, Ph.D., conducted a

physiological evaluation of McDevitt at the request of the Social Security
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Administration. McDevitt told Friedenberg that he was taking hydrocodone,

Neurontin, Phenergan, and Skelaxin. McDevitt also told Friedenberg that he was

suffering “emotional problems in the form of reactive anxiety, panic attacks, and

[depression].” Based on the interview, Dr. Friedenberg concluded that McDevitt’s

overall memory and concentration were moderately impaired. In addition to his

existing physical ailments, Dr. Friedenberg diagnosed McDevitt with depressive

disorder, adjustment disorder with mixed anxiety and depressed mood, and alcohol

abuse. Also in September 2002, McDevitt filled out Florida Department of Health

questionnaire indicating that he was taking hydrocodone, Neurontin, and Skelaxin,

and that this medication caused nausea, loss of concentration, and drowsiness. 

In October 2002, Dr. Val J. Bee, Psy.D., a state agency clinical psychologist,

examined McDevitt to assess his mental residual functioning capacity. Among

other things, Dr. Bee found that McDevitt’s ability to maintain attention and

concentration for extended periods was moderately limited. Dr. Bee concluded

that McDevitt’s “condition may cause diminished concentration and efficiency, but

he appear[ed] able to meet the mental demands of well structured task activity.” 

Dr. Bee noted that McDevitt reported drinking about two glasses of wine a day. 

In March 2003, McDevitt was admitted to the hospital for intractable

vomiting. While his discharge diagnoses included exposure to tuberculosis,
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esophagitis, gastritis with hemorrhage, duodenitis, continuous alcohol dependence,

and alcohol withdrawal, none of the physicians who treated him during this

hospitalization indicated the causes of these ailments. 

After reviewing the medical evidence, the ALJ found that McDevitt had

“post cervical/lumbar surgeries with back, neck, and bilateral upper extremity pain,

and [that] he ha[d] a substance addiction disorder, allegedly in remission,

hypertension, and a history of tuberculosis.” After finding that McDevitt was not

engaged in substantial gainful activity, the ALJ concluded that while these

impairments were severe, they did not meet any of the impairments in the

regulations. Accordingly, the ALJ proceeded to consider whether McDevitt had

one or more impairments that would prevent him from returning to any of his past

work experiences.

The ALJ found that McDevitt had the residual functional capacity (“RFC”)

to perform past relevant work, namely, telemarketing, and therefore concluded that

he was not disabled. In making this determination, the ALJ noted that the state

agency psychologist had found that McDevitt was moderately limited with regard

to concentration. However, the ALJ was persuaded that McDevitt’s concentration

was impaired because of his ongoing alcohol abuse at the time of the evaluation. 

The ALJ found that “[l]ater evidence in the record does not show significant
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memory or concentration deficits nor does it show any ongoing mental health

treatment.” The ALJ specifically found that McDevitt “did not mention any

concentration or memory difficulties at the hearing.” The ALJ stated that

McDevitt had “failed to address his ongoing abuse of alcohol in the past which

ha[d] played a significant role in his health problems.” 

McDevitt requested review of the ALJ’s decision by the Appeals Council,

which was denied. McDevitt then sought review in the district court. The district

court adopted the magistrate judge’s report and recommendation and affirmed the

ALJ’s determinations. 

STANDARD OF REVIEW

We review a social security case to determine whether the ALJ applied the

correct legal standards and whether the ALJ’s decision is supported by “substantial

evidence.” See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). In

reviewing the ALJ’s decision, “[w]e may not decide facts anew, reweigh the

evidence, or substitute our judgment for that of the [ALJ].” Philips v. Barnhart,

357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (internal quotation marks omitted). 

DISCUSSION

The Social Security regulations provide a five-step sequence for determining

whether a claimant is disabled. The ALJ must ask whether: (1) the claimant is
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presently unemployed; (2) the claimant’s impairment is severe; (3) the claimant’s

impairment meets or equals one of the specific impairments set forth in 20 C.F.R.

Pt. 404, Subpt. P, App.1; (4) the claimant is unable to perform his or her former

occupation; and (5) the claimant is unable to perform any other work within the

economy. McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). 

The ALJ followed the five-step analysis and found that McDevitt satisfied

the first and second prong, but not the third prong. Accordingly, McDevitt had to

satisfy the fourth prong by showing that he could not perform any of his former

jobs. The ALJ determined that McDevitt’s RFC would not limit him from

performing work as a telemarketer; therefore, McDevitt was not disabled. On

appeal, McDevitt asserts that the ALJ failed to properly develop the record by not

considering his testimony as to the side effects of medications that he was taking

and whether those side effects prevented him from performing the job of a

telemarketer. We agree. 

In determining whether a claimant can return to past relevant work, the ALJ

must determine the claimant’s RFC, using all relevant medical and other evidence

in the record. Phillips, 357 F.3d at 1238. We have stated that an ALJ has a duty to

investigate the possible side effects of medications taken by a claimant. See

Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981). We have also stated that
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“[i]t is conceivable that the side effects of medication could render a claimant

disabled or at least contribute to a disability.” Id. 

The ALJ specifically stated that “[t]he claimant did not mention any

concentration or memory difficulties at the hearing, although he said he was

depressed.” This is inaccurate. McDevitt specifically testified that the medication

he was taking at the time, Librium, caused extreme lack of concentration. 

McDevitt also testified that he took Benadryl, which made him sleepy. When the

ALJ asked McDevitt if he could perform the duties of a telemarketer, McDevitt

replied that he did not know because “it requires concentration.” While the ALJ

found McDevitt’s testimony “somewhat exaggerated,” the ALJ made no finding, as

to credibility or otherwise, regarding McDevitt’s claim that his medications caused

severe concentration problems and made him drowsy. Since the ALJ failed to

make a finding as to this claim, the ALJ’s determination that McDevitt could

perform the duties of a telemarketer was not based on substantial evidence in the

record. 

Accordingly, we reverse the district court and remand this case with

instructions that it be returned to the Commissioner for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.