Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DENZOAL E. SANDERS, 

Plaintiff,

vs. Case No. 1:03CV154-MMP/AK

JO ANNE B. BARNHART, 

Commissioner of Social Security,

Defendant.

 /

REPORT AND RECOMMENDATION

This action is brought pursuant to 42 U.S.C. § 405(g) of the Social Security Act

(the Act) for review of a final determination of the Commissioner of Social Security (the

Commissioner), whereby Plaintiff was granted a partially favorable decision awarding

him disability as of July 1, 1998, but denying him disability prior to that date during a

time when Plaintiff was insured for disability insurance benefits (DIB) under Title II of the

Act. Plaintiff was awarded supplemental security income benefits (SSI) filed under Title

XVI of the Act from July 1, 1998.

Upon review of the record, the Court concludes that the findings of fact and

determinations of the Commissioner are supported by substantial evidence; thus, the

decision of the Commissioner should be affirmed.

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 1 of 14
Page 2 of 14

1:03CV154-MMP/AK

A. PROCEDURAL HISTORY

Plaintiff filed an application for DIB and SSI on June 26, 1995, alleging a disability

onset date of May 1, 1995, as a result of degenerative disc disease, low back pain,

obesity, and mild non-insulin dependent diabetes. Plaintiff petitioned for a hearing

before an administrative law judge (ALJ), who conducted a hearing on February 20,

1997, and entered an unfavorable decision on May 29, 1997. The Appeals Council

denied Plaintiff's request for review, and Plaintiff filed a complaint in this Court resulting

in a Sentence Four remand on September 30, 1998, based on the government’s

inability to locate the administrative record. (R. 330-331). Thus, the Appeals Council

remanded this cause to the ALJ, who conducted an additional hearing on March 8,

2000, and entered a partially favorable decision on May 4, 2000. This decision was

denied review by the Appeals Council, and is now before this Court.

B. FINDINGS OF THE ALJ

The ALJ found that Plaintiff was insured for disability through March 31, 1998,

and that he had not engaged in substantial gainful activity since his onset date.

The ALJ further found that Plaintiff suffered from degenerative disc disease, low

back pain, obesity, and mild non-insulin dependent diabetes, which are severe

impairments within the meaning of the Regulations, but that these impairments did not

meet the Listings prior to July 1, 1998. 

The ALJ found that two different residual functional capacities applied to

Plaintiff’s history; one from the date of onset (May 1, 1995) through June 30, 1998, and

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 2 of 14
Page 3 of 14

 1 Since this disability period is after Plaintiff’s insured status had expired, the

practical result of this decision is that Plaintiff would received SSI disability benefits only.

1:03CV154-MMP/AK

the second from July 1, 1998, through the date of his decision. (R. 18). The ALJ found

that Plaintiff was capable of light exertional work with the following restrictions for the

first period: a sit/stand option; the occasional ability to climb, balance, stoop, kneel,

crouch and crawl; no work at heights or around hazards; and functionally illiterate. The

ALJ added mental limitations, as in the ability to do routine, repetitive tasks in a low

demand setting with no change in work setting and requiring close supervision with the

ability to concentrate for short periods one after the other throughout the day secondary

to moderate pain. (R. 26-27). This hypothetical was posed to a vocational expert, who

testified that while Plaintiff would not be able to perform his past relevant work, which

was heavy, he could perform a number of jobs in the national economy. 

The ALJ also found that Plaintiff’s residual functional capacity for the period after

July 1, 1998, was less than sedentary, requiring more rest breaks than normal and

included non-exertional impairments of pain and depression, which considering his age,

educational and vocational background rendered him disabled according to the MedicalVocational Guidelines. (R. 28). Thus, the ALJ found Plaintiff disabled for Title II and

SSI from July 1, 1998.1

 (R. 31). 

C. ISSUES PRESENTED

Plaintiff argues that the ALJ erred in not finding him disabled before March 31,

1998; specifically, the ALJ failed to give Plaintiff a presumption of credibility regarding

his level of pain prior to March 31, 1998. Plaintiff argues that the ALJ’s finding that he

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 3 of 14
Page 4 of 14

1:03CV154-MMP/AK

was not disabled until July 1, 1998, is arbitrary and ignores the treatment record of Dr.

Hauser, who found Plaintiff substantially limited from work in 1995.

The government responds that the medical record supported the ALJ’s finding

that Plaintiff was not disabled prior to July 1, 1998. Objective medical tests (MRI)

indicated normal or minimal findings prior to this time, and Plaintiff was treated twice

during the relevant time period for injuries sustained while using chisels, solder and

steel, indicating a level of activity inconsistent with his reported limitations. Plaintiff

himself testified that he helped his wife with yard sales and flea markets during this time

period for eight hours at a time. The medical evidence supported a worsening of his

condition with a progression of more serious treatment after July 1, 1998.

The issue thus presented is whether the Commissioner’s decision that Claimant

is not disabled is supported by substantial evidence in the record and decided by proper

legal standards.

D. STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) sets forth the standard of review for this court. The

Commissioner's decision must be affirmed if it is supported by substantial evidence and

the correct legal standards have been applied. Graham v. Apfel, 129 F.3d 1420, 1422

(11th Cir. 1997). Findings of fact by the Commissioner which are supported by

substantial evidence are conclusive. 42 U.S.C. § 405(g). Miles v. Chater, 84 F.3d 1397,

1400 (11th Cir. 1996). "Substantial evidence" has been defined to mean "such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion." 

Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citation omitted) (per curiam). It

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 4 of 14
Page 5 of 14

1:03CV154-MMP/AK

is more than a scintilla, but less than a preponderance. Bloodsworth v. Heckler, 703

F.2d 1233, 1239 (11th Cir. 1983) (citations omitted). The court may not reweigh the

evidence or substitute its judgment for that of the Commissioner. Wolfe v. Chater, 86

F.3d 1072, 1076 (11th Cir. 1996). It must determine only if substantial evidence

supports the findings of the Commissioner. See Bridges v. Bowen, 815 F.2d 622, 624

(11th Cir. 1987) (per curiam). Even if substantial evidence exists which is contrary to

the Commissioner's findings, where there is substantially supportive evidence of the

Commissioner's findings, the court cannot overturn them. Barron v. Sullivan, 924 F.2d

227, 230 (11th Cir. 1991). Unlike the deferential review accorded to the

Commissioner's findings of fact, his conclusions of law are not presumed valid. Martin v.

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citations omitted). The Commissioner's

failure to apply correct legal standards or to provide the reviewing court with an

adequate basis for it to determine whether proper legal principles have been observed

requires reversal. Id. (citations omitted). 

 A disability is defined as an "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. § 423(d)(1)(A). To

qualify as a disability the physical or mental impairment must be so severe that claimant

is not only unable to do his previous work, "but cannot, considering his age, education,

and work experience, engage in any other kind of substantial gainful work which exists

in the national economy . . . ." 42 U.S.C. § 423(d)(2)(A). 

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 5 of 14
Page 6 of 14

1:03CV154-MMP/AK

Pursuant to 20 C.F.R. § 404.1520(a)-(f), the Commissioner analyzes a claim in

five steps:

1. Is the individual currently engaged in substantial gainful activity?

2. Does the individual have any severe impairment?

3. Does the individual have any severe impairments that meet or equal those

listed in Appendix 1 of 20 C.F.R. Part 404?

4. Does the individual have any impairments which prevent past relevant

work?

5. Do the individual's impairments prevent any other work?

A finding of disability or no disability at any step renders further evaluation

unnecessary. Plaintiff bears the burden of establishing a severe impairment that keeps

him from performing his past work. If Plaintiff establishes that his impairment keeps him

from his past work, the burden shifts to the Commissioner at step five to show the

existence of other jobs in the national economy which, given Plaintiff’s impairments,

Plaintiff can perform. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986);

MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner

carries this burden, Plaintiff must prove that he cannot perform the work suggested by

the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). It is within

the district court's discretion to affirm, modify, or reverse a Commissioner's final

decision with or without remand. 42 U.S.C. § 405(g); Myers v. Sullivan, 916 F.2d 659,

676 (11th Cir. 1990). 

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 6 of 14
Page 7 of 14

1:03CV154-MMP/AK

E. SUMMARY OF CLAIMANT'S RELEVANT MEDICAL HISTORY

Since Plaintiff has been approved for disability after July 1, 1998, the issue

before the Court is whether he was disabled prior to that time. Thus, the only medical

evidence relevant to this issue is that prior to this date, which is summarized below.

Dixie County Health Clinic records show treatment from May 23, 1995 to July 26,

1995, for low back pain. (R. 165-173). He was treated with Tylenol, Tylox, Flexeril, and

advised to lose weight. (R. 165). 

A psychological evaluation done on August 22, 1995, found Plaintiff as “having a

very guarded potential for vocational rehabilitation. His motivation for work is

questionable since he is applying for SSD. Furthermore, he has been suffering with

medical problems for so many years; yet, he has not take any constructive steps to

make himself more employable. In today’s world, it is untenable to say that he is

illiterate and then do nothing about it.” (R. 185). Dr. Wells added “he may have some

genuine problems with his back pain; however, he is morbidly obese and he has to

assume some responsibility for his own weight reduction.” (R. 185). 

Treatment notes of Dr. Alfred Hauser from September 1995 to October 1995,

show that Dr. Hauser discussed diabetes with Plaintiff and found him to be in “severe

denial” about his disease and to have “2 small herniations” for which Hauser referred

him to Dr. Kennedy for an evaluation. (R. 192-242). An MRI done at this time shows

“moderate sized central disc protrusion at L3-4 and small central disc protrusion at L5-

S1.” (R. 216). Based on the MRI, Dr. Kennedy opted not to perform surgery, but to

continue non-operative care. (R. 252). 

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 7 of 14
Page 8 of 14

1:03CV154-MMP/AK

Dr. Hauser performed a consultative examination on August 31, 1995, and noted

that Plaintiff was first injured in 1970 driving a fork lift. (R. 218). He then fell in April

1995, and a car trailer fell on top of him. (R. 218). The physical examination was:

He has no severe spasm at the low back. There is no tenderness of the

quadratus lumborum. There is no suggestions of ridiculer sciatic nerve

root damage at this time. There is no gross decrease range of motion of

the cervical, thoracic or lumbar sacral spine. Although the patient does

complain of stiffness with range of motion. He can go form a prone to

supine position on the examining table without difficulty. He ambulates

without difficulty. He can [sic] in and out of a chair without difficulty. His

fine manipulation is intact. (R. 220).

In spite of these negative findings, Dr. Hauser stated “[b]ased on the patients

complaints it would be difficult to recommend him for gainful employment.” (R. 220).

Another consultative examination performed on October 11, 1995, by Dr.

Kennedy found Plaintiff to have chronic low back pain possibly due to disc herniation

(Dr. Kennedy had not yet received the MRI confirming herniation), but he suggested no

surgical intervention at the time and suggested that Plaintiff continue with a

rehabilitation program through Dr. Hauser. (R. 254).

A Residual Functional Capacity Assessment dated December 2, 1995, states

Plaintiff’s abilities as occasionally able to lift 50 pounds; frequently able to lift 25 pounds;

able to sit, stand, and walk six hours out of an eight hour day; and no other limitations. 

(R. 122-129).

A Psychiatric Review was completed by a consultant on September 7, 1995, who

found Plaintiff to have a Personality Disorder, which was not severe, but limited him to a

“wide range of routine tasks.” (R. 243-251).

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 8 of 14
Page 9 of 14

1:03CV154-MMP/AK

Another Psychiatric Review form completed on October 27, 1995, found Plaintiff

to have traits of a personality disorder, which only slightly affected his daily living

activities. (R. 262). 

Additional records from Dr. Hauser show that on January 3, 1996, Plaintiff’s back

pain was “subdued by the Ultram.” (R. 267).

A medical assessment completed by Dr. Hauser on June 5, 1996, found Plaintiff

to be limited in his lifting to five pounds; standing only one hour; sitting 6 to 8 hours; no

pushing or pulling; no being around moving machinery, but that Plaintiff “should get

herniated discs repaired, under go rehab, and then should be able to return to work

force.” (R. 266).

Medical records from Dr. Louis Jensen from August 1996 to November 1996

show treatment for lower back pain with medication, specifically Lorset and Flexeril. (R.

300-302). Dr. Jensen opined that “I personally think he is an example of someone if the

proper weight reduction and physical therapy exercise, etc would probably work quite

well and make him much more comfortable.” (R. 301).

As a point of reference, the examination of Plaintiff by Dr. Oscar De Paz on July

24, 1998, is included in this relevant medical history, as well as Dr. Jensen’s report of

July 29, 1998, in support of the ALJ’s finding that Plaintiff’s condition had significantly

worsened thereby justifying disability after this date.

Plaintiff reported to Dr. De Paz that he was in “severe back pain,” with right arm

tingling and weakness, such that he was afraid to pick anything up. (R. 385). Plaintiff

also reported that his right leg gave away and went numb, which had caused him to fall. 

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 9 of 14
Page 10 of 14

1:03CV154-MMP/AK

(R. 385). Plaintiff’s right arm was also numb. (R. 385). The range of motion

examination and neurological exam produced a number of findings indicating weakness,

limitation and pain. (R. 386). 

Dr. Jensen found him to be depressed and started him on Zoloft and several pain

medications. (R. 389).

F. SUMMARY OF THE ADMINISTRATIVE HEARING

The hearing was held on March 8, 2000, and Plaintiff’s present attorney, Albert

Bacharach, was present. (R. 65). Plaintiff was born on November 3, 1953, weighs 260

pounds, is six foot tall, has a sixth grade education, cannot read or write, and lives with

his wife and 12 year old son in a double-wide mobile home. (R. 68-69, 74). Up until

1998, he worked in his shop fixing up VCR’s and selling them with other things at a flea

market. (R. 72). Plaintiff’s wife testified because his memory was so poor, and she said

that he actually did nothing but sit at the flea market with her, he did not unload or load

or take money or make change. (R. 83-84). She also testified that he read only small

words and would write some to her, but she was the only person who could read his

writing because it was so bad. (R. 84-85).

Plaintiff testified that he was unable to work because of his back pain and

inability to concentrate. (R. 90). He states that he is in pain 24 hours a day and has

depression because everyone tells him he has it. (R. 91). He says he’s depressed

because he cannot support his family. (R. 91). Plaintiff states that Dr. Springer treats

him for the pain and depression and he is presently on Lortabs and Morphine. (R. 92). 

He rates his pain at a 20 on a scale from zero to 25 even when he is taking his

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 10 of 14
Page 11 of 14

1:03CV154-MMP/AK

medication. (R. 96). He says that he can sit an hour to two hours, he can stand for

about an hour, and he can walk about 4 or 5 blocks. (R. 96). He can lift about 25

pounds. (R. 96). Plaintiff claims that he can kneel, bend, and squat. (R. 97). He was in

prison from 1971 to 1979. (R. 98). He sometimes vacuums, puts dishes in the

dishwasher and clothes in the washing machine, but grocery shops very little, cooks

very little, and does nothing for fun. (R. 99-100). 

The ALJ posed several hypotheticals to the vocational expert. One is an

individual who is limited to a sedentary exertional level, with a sit/stand option, who can

occasionally climb, balance, stoop, kneel, crouch, and crawl, with no heights or hazards,

and who is functionally illiterate. (R. 102). The ALJ added that the person could do

simple routine repetitive tasks, low demand setting, cannot have any changes in the

work setting, requiring relatively close supervision, and can maintain concentration for

short periods of time secondary to moderate pain. (R. 102). The expert said there were

no jobs Plaintiff could perform. (R. 103). Then the ALJ asked about a similar individual,

who was limited to sedentary work, with a sit/stand option, and whose only mental

limitation was that he was functionally illiterate, and the expert said no jobs would exist

which Plaintiff could perform. (R. 104-105). If Plaintiff were limited to light work, and

limited to occasional climbing, balancing, stooping, no heights or hazards, and the only

mental limitation was that he was functionally illiterate, there were jobs he could

perform. (R. 105). The ALJ added that Plaintiff would be limited to simple routine,

repetitive tasks, with no changes in the work setting, low demand, close supervision,

and short periods of concentration secondary to moderate pain, and expert responded

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 11 of 14
Page 12 of 14

1:03CV154-MMP/AK

that there were a number of jobs he could perform. (R. 106). When the attorney added

that the individual would be unable to work a normal work day without more rest breaks

than normal, the expert said it would eliminate all jobs. (R. 106).

G. DISCUSSION

Plaintiff argues that the ALJ should have given Plaintiff a presumption of

credibility regarding his level of pain prior to March 31, 1998, and that his finding that

Plaintiff was not disabled until July 1, 1998, was arbitrary. 

In Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir. 1986), the Eleventh Circuit

adopted the following pain standard:

There must be evidence of an underlying medical condition and (1) there

must be objective medical evidence to confirm the severity of the alleged

pain arising from the condition or (2) the objectively determined medical

condition must be of a severity which can reasonably be expected to give

rise to the alleged pain.

The Eleventh Circuit continues to follow the Hand test. Elam v. Railroad Retirement

Bd., 921 F.2d 1210, 1216 (11th Cir. 1991); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th

Cir. 1991); Martin v. Railroad Retirement Bd., 935 F.2d 230, 233 (11th Cir. 1991). 

"While both the regulations and the Hand standard require objective medical evidence

of a condition that could reasonably be expected to cause the pain alleged, neither

requires objective proof of the pain itself." Elam, 921 F.2d at 1216. The court has held

that "[p]ain alone can be disabling, even when its existence is unsupported by objective

evidence." Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992), citing Walker v.

Bowen, 826 F.2d 996, 1003 (11th Cir. 1987). Standing alone, however, a claimant's

testimony of pain is not conclusive evidence of disability. Macia v. Bowen, 829 F.2d

1009, 1011 (11th Cir. 1987). If the Commissioner rejects a claimant's allegations of

pain, he must articulate explicit and adequate reasons, and these reasons must be

based on substantial evidence. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). 

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 12 of 14
Page 13 of 14

1:03CV154-MMP/AK

The failure to articulate adequate reasons for discrediting pain testimony mandates that

the testimony be accepted as true as a matter of law. Cannon v. Bowen, 858 F.2d

1541, 1545 (11th Cir. 1988). 

The ALJ cited the applicable pain standard and then cited to the medical

evidence for support of his finding that Plaintiff’s allegations of pain and limitation prior

to July 1, 1998, were not credible. Despite Plaintiff’s contention that Dr. Hauser’s

treatment notes supported a finding of disability, he found “2 small herniations” and

stated that he could not recommend that Plaintiff return to work based on the Plaintiff’s

subjective complaints. Further, in a later assessment Dr. Hauser opined that if Plaintiff

underwent a repair of the herniations, went to rehabilitation, and lost weight, he would

be able to work. Dr. Kennedy and Dr. Jensen both were of the opinion that Plaintiff

could work with physical therapy and weight loss, but the record does not indicate that

Plaintiff ever actively sought this type of help. Dr. Wells, who performed an extensive

mental examination, found no depression, but did believe that his lack of motivation to

work and improve his condition was the reason his vocational rehabilitation was

“guarded.” 

However, the ALJ found that Plaintiff’s condition had significantly worsened as

evidenced by an examination on July 24, 1998. At this examination, Plaintiff’s physical

findings were significant for pain and limitation. His reports of pain were more severe

and included numbness and right sided weakness. His mental status was positive for

depression and more serious medication was prescribed. There were no medical

records to cover the period from late 1996 until this examination, which supports a

logical, not an arbitrary, finding that this exam marked a significant change in his

condition.

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 13 of 14
Page 14 of 14

1:03CV154-MMP/AK

Accordingly, it is respectfully RECOMMENDED:

That the decision of the Commissioner denying benefits be AFFIRMED. 

At Gainesville, Florida, this 13th day of December, 2004. 

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

Case 1:03-cv-00154-MP-AK Document 15 Filed 12/13/04 Page 14 of 14