IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

ROSCOE DOUGLAS,

Plaintiff,

vs. CASE NO. 1:10-cv-8-MP-GRJ

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff appeals to this Court from a final decision of the Commissioner of Social

Security (the “Commissioner”) denying Plaintiff’s application for a period of disability

and disability insurance benefits pursuant to Title II of the Social Security Act. (Doc. 1.) 

The Commissioner has answered (Doc. 13), and both parties have filed briefs outlining

their respective positions. (Docs. 18 & 22.) For the reasons discussed below, the

Commissioner’s decision is due to be AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff protectively filed concurrent applications for a period of disability,

disability insurance benefits, and supplemental security income under Title II and Title

XVI on September 10, 2003, alleging a disability onset date of April 23, 1999. (R. 29-

32, 80-83, 488, 573.) These applications were denied initially on May 7, 2004 and upon

reconsideration on January 25, 2006. (R. 29-32, 467-81, 488.) Plaintiff timely pursued

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 1 of 29
his administrative remedies available before the Commissioner and requested a

hearing before an Administrative Law Judge (“ALJ”) (R. 47.) A hearing was held before

ALJ Douglas Walker on March 13, 2007 and ALJ Walker denied Plaintiff’s claims in a

decision dated August 9, 2007. (R. 26-27, 47, 467-81.) 

On May 13, 2008 the Appeals Council vacated ALJ Walker’s decision and

remanded the case for further proceedings due to an inaudible recording of the

administrative hearing. (R. 482-84.) On remand the ALJ was instructed to (i) consider

additional evidence regarding an impairment related to Plaintiff’s upper left extremity, (ii)

further evaluate Plaintiff’s subjective complaints, (iii) give further consideration to

Plaintiff’s residual functional capacity (“RFC”) and (iv) obtain evidence from a vocational

expert to clarify the effect of the assessed limitations on Plaintiff’s occupational base. 

(R. 483-84.) A supplemental hearing was conducted on September 17, 2008 before

ALJ Douglas W. Abruzzo and ALJ Abruzzo issued a decision denying Plaintiff’s claims

on December 31, 2008. (R. 488-504.)

At this point Plaintiff’s case diverged procedurally from the normal Social

Security action. The Appeals Council remanded the Plaintiff’s Title XVI claims on

November 20, 2009 with instructions to the ALJ to evaluate a treating source opinion

that the ALJ had not previously considered. (R. 505-07.) On that same day, the 1

Appeals Council also denied Plaintiff’s request for review of his claim for disability and

disability insurance benefits under Title II. (R. 544-47.) This bifurcated Plaintiff’s claims

The Appeals Council noted in the decision remanding Plaintiff’s Title XVI claims that “[a]

1

separate action is being taken on the claim for a Period of Disability and Disability Insurance Benefits

based on the evidence through the date last insured of December 31, 1999.” (R. 506.)

2

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 2 of 29
so that ALJ Abruzzo’s denial of Plaintiff’s claims became the final decision of the

Commissioner, but only with respect to Plaintiff’s Title II claim. Plaintiff then appealed 2

to this Court. (Doc. 1.) 

II. STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial

evidence. Substantial evidence is more than a scintilla, i.e., the evidence must do more 3

than merely create a suspicion of the existence of a fact, and must include such

relevant evidence as a reasonable person would accept as adequate to support the

conclusion.4

Where the Commissioner's decision is supported by substantial evidence, the

district court will affirm, even if the reviewer would have reached a contrary result as

finder of fact, and even if the reviewer finds that the evidence preponderates against

the Commissioner's decision. The district court must view the evidence as a whole,

5

taking into account evidence favorable as well as unfavorable to the decision.6

However, the district court will reverse the Commissioner's decision on plenary review if

The Appeals Council’s decision noted that “[t]his letter is only about your claim for Title II

2

disability insurance benefits” and “[t]his means that the Administrative Law Judge’s Decision is the final

decision of the Commissioner of Social Security in your case.” (R. 544.)

See 42 U.S.C. § 405(g) (2000).

3

Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,

4 th

838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842

th

(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 Cir. 1991).

th

Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 Cir. 1991).

5 th

Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 Cir. 1992) (holding

6 th

that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v.

Bowen, 793 F.2d 1177 (11 Cir. 1986) (finding that the court also must consider evidence detracting from

th

evidence on which the Commissioner relied).

3

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 3 of 29
the decision applies incorrect law, or if the decision fails to provide the district court with

sufficient reasoning to determine that the Commissioner properly applied the law.7

The law defines disability as the inability to do any substantial gainful activity by

reason of any medically determinable physical or mental impairment that can be

expected to result in death, or has lasted or can be expected to last for a continuous

period of not less than twelve months. The impairment must be severe, making 8

Plaintiff unable to do his previous work, or any other substantial gainful activity which

exists in the national economy.

9

The ALJ must follow five steps in evaluating a claim of disability. First, if a 10

claimant is working at a substantial gainful activity, he is not disabled. Second, if a 11

claimant does not have any impairment or combination of impairments which

significantly limit his physical or mental ability to do basic work activities, then he does

not have a severe impairment and is not disabled. Third, if a claimant's impairments

12

meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is

disabled. Fourth, if a claimant's impairments do not prevent him from doing past 13

Keeton v. Dep’t Health and Human Servs., 21 F.3d 1064, 1066 (11 Cir. 1994).

7 th

42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.

8

will be to the 2005 version unless otherwise specified.).

42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

9

20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a

10

disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 Cir. 1991).

th

20 C.F.R. § 404.1520(b).

11

20 C.F.R. § 404.1520(c).

12

20 C.F.R. § 404.1520(d).

13

4

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 4 of 29
relevant work, he is not disabled. Fifth, if a claimant's impairments (considering his 14

residual functional capacity (“RFC”), age, education, and past work) prevent him from

doing other work that exists in the national economy, then he is disabled.15

The burden of proof regarding the plaintiff’s inability to perform past relevant

work initially lies with the plaintiff. The burden then temporarily shifts to the 16

Commissioner to demonstrate that “other work” which the claimant can perform

currently exists in the national economy. The Commissioner may satisfy this burden

17

by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive

determination that a claimant is disabled or not disabled. 

18

However, the ALJ should not exclusively rely on the Grids when “the claimant

has a non-exertional impairment which significantly limits his or her basic work skills or

when the claimant cannot perform a full range of employment at the appropriate level of

20 C.F.R. § 404.1520(e).

14

20 C.F.R. § 404.1520(f).

15

Walker v. Bowen, 826 F.2d 996, 1002 (11 Cir. 1987); see also Doughty v. Apfel, 245 F.

16 th

3d 1274, 1278 (11 Cir. 2001).

th

Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:

17

In practice, the burden temporarily shifts at step five to the Commissioner. The

Commissioner must produce evidence that there is other work available in significant

numbers in the national economy that the claimant has the capacity to perform. In order

to be considered disabled, the claimant must then prove that he is unable to perform the

jobs that the Commissioner lists. The temporary shifting of the burden to the Commissioner

was initiated by the courts, and is not specifically provided for in the statutes or

regulations.) (Internal citations omitted).

Walker, 826 F.2d at 1002 (“[T]he grids may come into play once the burden has shifted to the

18

Commissioner to show that the claimant can perform other work.”).

5

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 5 of 29
exertion.” In a situation where both exertional and non-exertional impairments are 19

found, the ALJ is obligated to make specific findings as to whether they preclude a wide

range of employment.20

The ALJ may use the Grids as a framework to evaluate vocational factors so

long as he introduces independent evidence of the existence of jobs in the national

economy that the claimant can perform. Such independent evidence may be 21

introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive

means of introducing such evidence. Only after the Commissioner meets this burden

22

does the burden shift back to the claimant to show that he or she is not capable of

performing the “other work” as set forth by the Commissioner.

III. SUMMARY OF THE RECORD

The Plaintiff challenges ALJ Abruzzo’s findings with respect to ALJ Abruzzo

determination at Step Four that work Plaintiff performed while on work release from

prison was past relevant work and ALJ’s Abruzzo’s conclusion as to Plaintiff’s

credibility. Tthe Court will, therefore, focus its discussion of the record on those issues. 

A. Personal Background

Plaintiff born on January 5, 1957 was 51 years old as of the date of his

September 17, 2008 administrative hearing. (R. 834.) Plaintiff completed 12 years of

Wolfe v. Chater, 86 F.3d 1072, 1077 ( 11 Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229

19 th

(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids may be used only when each variable on the

th

appropriate grid accurately describes the claimant’s situation.”).

W alker, 826 F.2d at 1003.

20

W olfe, 86 F.3d at 1077-78.

21

See id.

22

6

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 6 of 29
schooling and graduated from high school. (R. 834.) Plaintiff last worked in 2007,

when he was on work release from prison. Plaintiff was not working at the time of his

administrative hearing. (R. 838, 851.)

B. Evidence Considered By ALJ Abruzzo

The majority of the medical evidence considered by ALJ Abruzzo consisted of

medical records from Plaintiff’s visits to various doctors and hospitals over an

approximately 15 year period. Several consulting physicians also completed disability

evaluations and physical RFC assessments of Plaintiff which ALJ Abruzzo also relied

upon in making his determination that Plaintiff was not disabled as of April 23, 1999. 

While the Court will summarize briefly this medical evidence a majority of this

evidence post-dates December 31, 199, the date Plaintiff was last insured and

therefore the medical evidence only has marginal relevance. Specifically, in order for

Plaintiff to succeed on his Title II claim in this case, he must establish a disability as of

December 31, 1999, Plaintiff’s date last insured for Title II purposes. The Court will first

review the medical evidence before 1999 and then briefly address the medical evidence

after the date last insured. 

1. Pre-1999 Medical Evidence

Plaintiff has had a history of lower back pain since as early as 1994. Plaintiff

visited Family Medical Practice in Cross City, Florida several times in February, March

and April 1994 complaining of lower back pain caused by the heavy lifting and twisting

that Plaintiff performed as a part of his job at Overstreet Mulching. (R. 330-36.) 

Several months later Plaintiff was awarded temporary total disability workers

7

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 7 of 29
compensation benefits for a work-related lower back injury that he suffered on June 9,

1994 while lifting 55-60 pound pallets at work at Overstreet Mulching. (R. 72, 249.)

Plaintiff was referred to neurologist Dr. Jeffrey Klein, M.D. in connection with his

lower back injury. Dr. Klein’s neurological examination of Plaintiff on August 24, 1994

reflected decreased sensation to pin prick on the left from C6 to C8 and from L5 though

S1. Musculoskeletal examination reflected point tenderness of the lower cervical spine

and lumbosacral spine diffusely. (R. 249-50.) Cervical MRI exams on September 8,

1994 reflected minimal bulging of the discs at C3-C4, C4-C5, and some mild disc

bulging at C5-C6, but no signs of spinal stenosis. (R. 221.) An MRI of the lumbar spine

performed the same day showed prominent central disc bulging and moderate to

severe spinal stenosis at L4-L5 while there was more diffuse disc bulging and no spinal

stenosis at L5-S1. (R. 221.)

Plaintiff was also referred to Dr. Kipp Kennedy, M.D. at the Gainesville

Orthopaedic Group in Gainesville, Florida by Dr. Klein. Dr. Kennedy’s progress notes

from a physical exam on November 22, 1994 reflect that Plaintiff was able to squat and

rise with only mild to moderate discomfort and that examination of his spine revealed a

normal contour of the cervical, thoracic and lumbar spine. (R. 211-13.) Dr. Kennedy’s

progress notes from December 20, 1994 reflect that Plaintiff was still suffering from pain

in his neck and back, but noted that Dr. Kennedy’s review of Plaintiff’s MRI lumbar

spine and cervical spine scans from September of that year showed no evidence of

degenerative changes in the cervical spine and some degenerative changes at L4-5

that were “no[t] atypical for the patient’s age.” (R. 210.) 

Plaintiff reported to the ER at North Florida Regional Medical Center in

8

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 8 of 29
Gainesville on December 22, 1994 complaining of increasing back pain after having

been to his physician earlier in the day for myelogram and post myelogram CT scans.

(R. 201.) Those CT scans showed “a mild disk bulging that is generalized at L4-L5

without focal disk herniation and without evidence of nerve root compromise or nerve

root entrapment.” (R. 201.) Progress notes from Dr. Kennedy’s review of Plaintiff’s

December 1994 CT scans reflected Dr. Kennedy’s assessment that Plaintiff did not

show signs of significant stenosis, and that there “was a mild stenosis relative to the

main canal at L4-5 but not causing significant neural impingement.” (R. 209.) 

Plaintiff’s workers compensation benefits for his lower back injury were

terminated as of January 6, 1995 because a “detailed field investigation on Mr. Douglas

... found several locations where he worked for ‘CASH’ while still collecting TTD [total

temporary disability] payments & supposedly unable to work” according to a written

report from the Florida Division of Workers’ Compensation. (R. 77.)

Plaintiff visited the North Florida Regional Medical Center ER again on July 12,

1995 complaining of severe lumbar back pain that had originated when Plaintiff had

twisted while he was on a ladder cutting down a tree limb. (R. 252.) The progress

notes from that visit reflect that although Plaintiff “still complained of severe pain, he

was able to get off the back board and ambulate to the bathroom without any limp

whatsoever,” that “he was able to hop off of the stretcher with no apparent discomfort or

restriction” and that “[h]e was ambulating without any limp or any other obvious pain.” 

(R. 253.) A CT scan of Plaintiff’s lumbar spine taken that day revealed “slight narrowing

of the L4-5 disc space ... with small vertebral osteophytes, consistent with minimal

degenerative disc disease” but was “[o]therwise unremarkable.” (R. 254.)

9

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 9 of 29
Plaintiff’s medical history during this time also reveals substantial suspicion on

the part of Plaintiff’s medical providers with respect to Plaintiff’s possible abuse of

prescription drugs. Plaintiff visited Dr. Klein again on February 9, 1995 and Dr. Klein

noted that Plaintiff “appears to be dependent on excessive narcotics” and referred

Plaintiff to a psychiatrist “[b]ecause of his dependence on narcotics.” (R. 214.) On

October 15, 1996 John Knight, a certified physician assistant at Family Medical Practice

in Cross City, wrote that Plaintiff has a prior medical history of “substance abuse, drug

dependence and abuse of street drugs.” (R. 297.) A progress note written by Dr. Louis

C. Jensen, M.D. of Family Medical Practice on a December 7, 1996 visit states that

Plaintiff is “a chronically disabled man with a lot of neck pain that people have thought

was a Rx drug overuser.” (R. 292.) On January 9, 1997 Dr. Jensen wrote that Plaintiff

“has chronic neck and back pain that some people thought he has a pretty bad drug

abuse history.” (R. 290.) A progress note from February 17, 1997 written by Dr.

Jensen also reflects that Plaintiff and his wife were in the county jail for stealing

prescription medication and writing checks on the account of an elderly woman, that

Plaintiff “has been getting medication from other pharmacies” and that “will O/C all

sedatives and narcotic pain medication for this man.” (R. 290.)

The last medical evidence in the record prior to Plaintiff’s alleged disability onset

date of April 23, 1999 or date last insured of December 31, 1999 appears in the form of

progress notes from a October 1, 1998 visit to Family Medical Practice. (R. 285.) 

Plaintiff presented with a rash and stated “that over this past weekend he did do some

painting as well as moving large amounts of wood that were out in the woods.” (R.

285.) 

10

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 10 of 29
2. Post-1999 Medical Evidence

The vast majority of the medical evidence in the record deals with Plaintiff’s

medical history from 2000 onward. According to CT scans of Plaintiff’s lumbar spine

performed on December 12, 2000 at the Diagnostic Imaging Center in Gainesville

Plaintiff had a slight loss of disc height at L3-L4 and the L5-S1 disc space “probably”

also showed some loss of height, but the latter disc space was poorly imaged. (R.

452.) Dr. Michael Parker, M.D.’s conclusion was prominent straightening of the normal

lumbar lordosis, which is usually associated with muscle spasm, and mild discogenic

disease at L3-L4, L4-L5 and probably L5-S1. (R. 452.)

On April 25, 2002 Plaintiff visited Dr. Jesse Lipnick, M.D. of Rehabilitation

Medicine Associates, P.A in Chiefland. Plaintiff self-reported that he was suffering from

severe pain that was 10 on a scale of 1-10, but Dr. Lipnick noted in the progress notes

that Plaintiff only appeared to be in moderate distress. (R. 400-02.) Dr. Lipnick

performed nerve conduction studies and electromyography on a July 9, 2002 visit,

which reflected moderate bilateral median nerve entrapments at the transverse carpal

ligaments but no evidence of peripheral neuropathy or radiculopathy. (R. 394-99.)

Plaintiff reported to Shands Hospital at the University of Florida (“Shands”) in

Gainesville on February 17, 2003 complaining of progressive numbness in his upper

extremities, weakness in his arms and legs and neck and back pain. (R. 370.) MRI

scans of his cervical spine showed relatively advanced spondylitic myeolopathy with

canal stenosis and moderate cord compression from C3 to C7. (R. 370.) On February

26, 2003 a cervical laminectomy and fusion with instrumentation from C3 to T1 surgical

11

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 11 of 29
procedure was performed without complications on Plaintiff’s spine by Dr. Jeffrey Henn

and Plaintiff was ambulating without any problems soon after the surgery. (R. 372-75.) 

On a visit to Dr. Henn on July 31, 2003 Plaintiff reported that he had reinjured his

neck while incarcerated and that he was suffering from neck pain. Dr. Henn noted that

“[o]verall, Mr. Douglas is doing quite well” and that “[o]n examination he looks well with

good strength in upper and lower extremities.” (R. 392-93.) Plaintiff again reported to

the Shands ER on March 18, 2004 complaining of neck pain and injury, the source of

which Plaintiff stated was “picking up heavy items” the day before. (R. 405, 408.)

A physical examination of Plaintiff performed in April 2004 by Dr. Lance I.

Chodosh, M.D. for the Florida Department of Health’s Division of Disability

Determinations reflected that Plaintiff’s physical condition was not nearly as disabling as

Plaintiff reported. (R. 432-435.) Dr. Chodosh noted that, although Plaintiff exhibited

moderate pain behavior, his spinal function appeared to be fair and that, although

Plaintiff appeared to have a mildly spastic gait, he was also able to walk reasonably

well. (R. 433, 435.) Based on the objective evidence, Dr. Chodosh opined that Plaintiff

“is physically able to walk and stand to at least a moderate extent. He is physically able

to sit in a normal fashion. He is able to bend to a moderate extent, and can lift and

carry at least 25 pounds. He is probably able to squat, kneel, and crawl occasionally. 

He is physically able to handle objects of moderate size and weight.” (R. 435.)

Plaintiff also continued to exhibit signs of possible abuse of narcotics years after

his treating physicians had first raised questions about Plaintiff’s abuse of narcotics as

far back as 1995. Plaintiff reported to the Dixie County Health Department with

complaints of neck and lower back pain on April 15, 2004 and the progress notes from

12

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 12 of 29
that visit reflect that Plaintiff was informed that narcotics could no longer be prescribed

for him on a chronic basis. (R. 450.) In June 2004 the progress notes from another

visit to the Dixie County Health Department reflected that Plaintiff was not honest about

going to vocational rehabilitation and expressed concern that Plaintiff was abusing

narcotics. (R. 448-49.) The medical treatment provider specifically stated that he or she

was “very concerned about what else the pt is not telling the truth about.” (R. 449.)

In May 2005, when Plaintiff was incarcerated, he was examined at Shands for an

abnormal mass on the left side of his neck. (R. 798-99.) Plaintiff admitted that the

mass had been present on his neck for upwards of 10 years. (R. 798.) The progress

notes for a follow-up visit in July reflect that masses of this type “can be seen in patients

who are of [sic] using drugs intravenously injecting in the neck.” (R. 795.) A CT scan of

the mass, which was determined to be a brachial cleft cyst, confirmed that it was likely

of infectious etiology. (R. 796.) The cyst was then surgically removed on August 22,

2005. (R. 789-90.) The mass, however, was not completely excised and continued to

grow after the surgery. (R. 783-88.) Plaintiff was prescribed pain medication for what

he reported as severe pain from the left neck mass and asked for Percocet, but was

“advised that it is felt that he has been taking too many narcotics for the amount of pain

that would be expected for his type of surgery.” (R. 777.) The rest of the mass was

successfully surgically removed on November 14, 2005. (R. 777.)

Plaintiff visited the ER at Shands again on January 5, 2006 complaining of neck

pain, chest pain, and withdrawal and reporting that he had run out of his pain

medication the previous day. (R. 769-70.) Plaintiff was given a pain control shot and

was discharged with a final diagnosis of narcotic withdrawal and chest pain. (R. 767,

13

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 13 of 29
769-75.) The progress notes from a follow-up visit the next day to Dr. Douglas Villaret,

the otolaryngologist, who removed the mass on Plaintiff’s left neck area, reflect that

“Patient continues to have excessive amounts of pain that are not common with this

procedure.” (R. 767.)

Plaintiff reported to the Shands ER on February 2, 2007 complaining of neck and

back pain after having falling down a flight of stairs the previous day. (R. 655.) A CT

scan of Plaintiff’s spine showed that the screws from his laminonectomy surgery in

2003 had loosened a fraction, but there was no evidence of soft tissue swelling, no

fractures were present and no definite findings to suggest infection. (R. 765.) MRI

scans also were normal. Plaintiff was prescribed Darvocet for his pain and was

discharged without a collar. (R. 655-58.) 

On a follow-up appointment on February 27, 2007, Dr. Dean Lin determined that

some of the screws from Plaintiff’s 2003 surgery had slightly loosened, and Dr. Lin

wrote in the progress notes that “[t]he hardware appears to be stable and well within

bone from C3 down to C6 with good fusion mass present there” with only a “slight

loosening” of the screws at T1. (R. 653-54, 803.) Dr. Lin also noted, however, that

Plaintiff was also advised that he would not be prescribed any further pain medications

or muscle relaxants. (R. 653.) On another follow-up visit on March 20, 2007 Dr. Lin

determined that it would be unwise to do anything with regard to the loosening of the

screws at the T1 level. (R. 651-52.) Dr. Lin also wrote in the progress notes for that

visit that “I have emphasized to him that he needs to be seen by Pain Clinic in order to

let the pain settle down and I have told him that I will not give him any more

prescriptions for narcotic pain medications or muscle relaxants.” (R. 651-52.)

14

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 14 of 29
On October 5, 2007 Plaintiff again reported to the Shands ER complaining of

aching pain in his neck and left arm and left arm weakness that had started

approximately six days before. (R. 643.) Examination reflected that he had marked

impairment in fine finger movements and extension of the fingers and wrists and

diminished reflexes in the left upper extremity. (R. 643.) The preliminary conclusion

was that there was a possible issue with Plaintiff’s left brachial plexus or radial/median

nerves. (R. 644.) An MRI of Plaintiff’s brachial plexus was performed and did not show

any plexopathy. (R. 662.) MRI’s of his neck and head demonstrated “good cord

decompression without current compression and without signal change in the cord” and

“showed stable post surgical changes” with “[n]o evidence of residual cervical cord

compression or signal change within the cord.” (R. 644, 664-69.) 

Dr. Edward Valenstein, M.D., Chairman of the Neurology Department at Shands,

wrote in a letter dated March 28, 2008 to Dr. Peter Gallogly, Plaintiff’s pain

management specialist at the Lafayette County Health Department, that Plaintiff’s likely

diagnosis was brachial plexopathy. (R. 660-61.) Dr. Valenstein opined that “I do not

think his current weakness is related to his known spine disease” and that “[i]t is difficult

for me to estimate the degree of disability since most of it is based on pain rather than

weakness.” (R. 661.) Dr. Valenstein also expressed concern regarding Plaintiff’s

reliance on pain medications, writing that “[t]here is at least a theoretic concern about

reduction of pain threshold on chronic opiates” and that “I think that he should be

encouraged to reduce the opiate medication if at all possible.” (R. 661.)

Dr. Lance I. Chodosh conducted another disability determination of Plaintiff on

October 7, 2009. (R. 699-703.) Despite Plaintiff’s claims of disabling pain and virtual

15

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 15 of 29
paralysis in his left hand, Dr. Chodosh stated in his written report that Plaintiff

“presented a vague, and not very credible history.” (R. 699.) Dr. Chodosh’s conclusion

was that Plaintiff suffered from “chronic pain and alleged paralysis of left arm and hand,

but without signs of physical impairment” and also stated that “[i]t is my opinion, based

only on objective evidence, that this person is able to stand, walk, sit, stoop, squat,

kneel, lift, carry, handle objects, see, hear, and speak normally.” (R. 702.) 

3. Physical RFC Assessments

A number of physical RFC assessments performed on Plaintiff between 1995

and 2009 are also included in the record. A physical RFC assessment performed on

July 25, 1995 by Dr. J.J. Green, M.D. concluded that Plaintiff could occasionally lift

and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for six

hours in an eight hour work day, sit for about six hours in an eight hour work day, and

had an unlimited ability to push and/or pull. (R. 255-262.) In support of this conclusion,

Dr. Green noted that Plaintiff’s MRI scans showed few bulges and no significant motor

or sensory changes. (R. 256.) Another physical RFC evaluation performed by Dr.

David Guttman, M.D. on January 24, 1996 was identical, except that Dr. Guttmann

concluded that Plaintiff could frequently lift and/or carry 25 pounds and stand and/or

walk for four hours in an eight hour work day. (R. 276-83.) 

Another physical RFC evaluation performed by Dr. Robert Steele, M.D. on July

30, 2002 reached the identical conclusions to Dr. Green’s assessment. (R. 362-369.) 

Another physical RFC evaluation performed by Dr. Eric C. Puestow, M.D. dated April

27, 2004 also contained identical conclusions. (R. 438-45.) With regard to Plaintiff’s

alleged symptoms, Dr. Puestow concluded that Plaintiff’s symptoms were attributable to

16

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 16 of 29
a medically determinable impairment but that the severity or duration of the symptoms

as reported by Plaintiff was disproportionate to the expected severity or expected

duration on the basis of Plaintiff’s medically determinable impairments. (R. 443.)

Thomas Peele, M.D. completed another physical RFC evaluation dated

December 3, 2009 that contained identical conclusions to Dr. Steele and Dr. Puestow’s

earlier evaluations. (R. 707-14.) With regard to Plaintiff’s alleged symptoms, Dr. Peele

concluded that the severity or duration of the symptoms as reported by Plaintiff was

disproportionate to the expected severity or expected duration on the basis of Plaintiff’s

medically determinable impairments and that these subjective allegations exceeded the

objective medical evidence. (R. 712.)

C. Hearing Testimony

The Plaintiff testified at the administrative hearing. He testified that he does not

have a driver’s license and does not drive because his doctor had advised him not to do

so on account of Plaintiff’s reflexes. (R. 859.) Plaintiff also stated that he has trouble

bathing himself and getting dressed because he has to do both one-handed. (R. 859.) 

He did state that he could probably prepare a microwave dinner or a sandwich. (R.

859.) Plaintiff further testified that he could dust a lamp but could not sweep a floor with

a broom, vacuum a rug, wash dishes or do laundry due to his neck pain. (R. 859-60.) 

Plaintiff testified that in 1999 he began having serious trouble with his neck. (R.

852.) When asked by ALJ Abruzzo when he was first diagnosed with neck problems,

he stated that it was in 2003 when he visited the Shands ER. (R. 852.) Plaintiff

testified that MRI’s had revealed that the cause of his neck pain was seven heat strokes

that Plaintiff had suffered in his brain, which had caused his spinal column to grow

17

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 17 of 29
around his spine and also had caused nerve damage. (R. 852.) Plaintiff testified that

the abnormal growth of his spinal column had also affected several discs in his neck. 

(R. 853.) He testified that he had surgery and that a fusion cage was put in his neck at

levels 5, 6 and 7. (R. 853.) Plaintiff stated in response to a question from ALJ Abruzzo

that after the fusion surgery he had “slowly got a little better” to the point where he no

longer had to look at his feet to walk. (R. 854.) He also testified, however, that the pain

from his neck was continuous. (R. 854.) Plaintiff also testified to back pain that had

required a further two fusion cages to treat. (R. 856.) 

Plaintiff testified that, after his neck problems, his most serious impairment was

his left arm. (R. 854.) He stated that his left arm began bothering him after his last

administrative hearing in 2007, or approximately 18 months at the time of his

administrative hearing before ALJ Abruzzo. (R. 855.) Plaintiff testified that he cannot

use his left hand at all and that he can only move his arm a little. (R. 871.) He uses a

brace on his left arm, which he wore at the administrative hearing. (R. 871.) 

Susanna Roche, a vocational expert, also testified at the hearing. She testified

that Plaintiff’s past relevant work included the positions of construction laborer, masonry

laborer, stacker/operator, industrial truck operator, material handler, and office helper. 

(R. 862-867.) ALJ Abruzzo asked the VE whether a hypothetical individual who was

limited to the following RFC could perform any of Plaintiff’s past relevant work: no more

than the light range of exertion; who had to avoid crawling and the climbing of ropes,

scaffolds, and ladders exceeding six feet; no more than occasional work with the head

tilted back; compatible with a sit/stand/walk option, wherein the individual could take no

more than 5 steps from the work station, perform a stretch maneuver, return within one

18

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 18 of 29
minute and do so no more than 5 times per hour; limited to occasional pushing and

pulling with the lower bilateral extremities, including the operation of pedals unless the

pedal requires less than five pounds; avoid prolonged exposure to cold temperature

extremes, extreme wetness or humidity for six hours out of an eight hour shift; and

avoid unprotected heights. (R. 867.) 

Ms. Roche testified that a hypothetical individual with that RFC could perform the

duties of an office helper. (R. 868.) When asked by ALJ Abruzzo whether there were

any other occupations in either the state or national economy that such a person could

perform aside from the position of office helper, Ms. Roche testified that such an

individual could perform the positions of counter clerk, routing clerk, food and beverage

order clerk and new account interviewer. (R. 868.) She further testified that significant

numbers of such jobs exist both in Florida and in the national economy. (R. 868-69.)

D. Findings of ALJ Abruzzo

ALJ Abruzzo determined that Plaintiff last met the insured status requirements of

the Social Security Act as of December 31, 1999. (R. 490.) He further determined that

Plaintiff had not engaged in substantial gainful work activity since April 23, 1999. (R.

490.) The ALJ found that Plaintiff had the following severe combination of impairments:

“status-post cervical/thoracic fusion C3 to T1; mild lumbar disc disease; brain whitematter small vessel ischemia; status-post three left brachial cyst excisions, possible

lower extremity neuropathy.” (R. 490-91.) He also concluded that symptoms related to

Plaintiff’s left upper extremity pain and weakness, mild mood disorder, and late-onset

dysthymic disorder did not, either singly or in combination, have more than a minimal

effect on Plaintiff’s ability to perform work functions on a sustained basis. (R. 491.) 

19

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 19 of 29
Accordingly, the ALJ concluded that each of these impairments was non-severe. The

ALJ went on to find at step three of the sequential evaluation that Plaintiff did not have

an impairment or combination of impairments that met or medically equaled one of the

listed impairments. (R. 491.) 

With respect to Plaintiff’s residual functional capacity at step four of the

sequential evaluation, ALJ Abruzzo determined that Plaintiff retained the RFC to

perform light work, that is, that Plaintiff must (i) avoid climbing ropes, scaffolds, and

ladders over 6 feet high, (ii) that Plaintiff is limited to occasional overhead work or work

with his head tilted back, (iii) that Plaintiff is limited to occasional pushing/pulling with

the lower bilateral extremities including the operation of pedals unless the pedal

requires less than 5 pounds to operate, and (iv) that Plaintiff must avoid prolonged

exposure to hot or cold temperature extremes and extreme wetness and humidity as

well as unprotected heights. (R. 492.) ALJ Abruzzo concluded that Plaintiff’s medically

determinable impairments could reasonably be expected to produce some of Plaintiff’s

alleged symptoms but that Plaintiff’s statements concerning the intensity, persistence

and limiting effects of his symptoms were generally not credible. (R. 499.) 

ALJ Abruzzo then concluded that Plaintiff was able to perform his past relevant

work as an office helper. (R. 502.) ALJ Abruzzo also noted that “should any reviewing

authority re-weigh the evidence and determine the office helper position was not past

relevant work, the undersigned continues this analysis into an alternative Step 5

decision below.” (R. 502.) At Step Five, ALJ Abruzzo concluded that considering

Plaintiff’s age, education, work experience, and RFC, together with the VE’s testimony,

that there are jobs that exist in significant numbers in the national economy that Plaintiff

20

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 20 of 29
can perform. (R. 502.) Accordingly, ALJ Abruzzo concluded that Plaintiff is capable of

making a successful adjustment to other work that exists in significant numbers in the

national economy. ALJ Abruzzo thus concluded that Plaintiff had not been under a

disability at any time from April 23, 1999 through the date of his decision.

IV. DISCUSSION

Plaintiff contends that ALJ Abruzzo erred in including the position of office helper

as past relevant work at Step Four of the sequential analysis. Further, Plaintiff

challenges the ALJ’s finding that Plaintiff’s subjective complaints of disabling pain were

not fully credible. The Court will discuss each of the two issues in turn. 

A. Plaintiff’s Past Relevant Work

Plaintiff contends that ALJ Abruzzo erred in “sua sponte” deciding that Plaintiff’s

previous job as an office helper while on work release from prison constituted past

relevant work. According to Plaintiff, his description of his duties as office helper at

Painter Masonry while on work release was not consistent with the duties listed in the

Dictionary of Occupational Titles for the position of office helper and, thus, the ALJ

erred in concluding that his position as an office helper was past relevant work. 

Plaintiff’s argument misconstrues the meaning of past relevant work in the

sequential analysis and the function of the DOT in determining whether a claimant can

perform past relevant work. At Step Four of the sequential evaluation, a plaintiff bears

the burden of proving he cannot meet the physical and mental demands of his past

relevant work, either as he performed it in the past or as the work is generally

performed in the national economy. Jackson v. Bowen, 801 F.2d 1291, 1293 (11th

Cir.1986); 20 C.F.R. § 404.1560(b). As such, a claimant must demonstrate that he

21

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 21 of 29
cannot perform the job that he actually performed and that he cannot perform the job as

the job is generally performed in the national economy. The DOT is relevant to

determining the duties of the job as the job is generally performed in the national

economy. On the other hand, where, as here, the job actually performed by the plaintiff

is different from and less restrictive than the job listed in the DOT the ALJ may compare

the plaintiff’s RFC with the duties of the job actually performed by the Plaintiff in making

his determination whether the plaintiff can perform past relevant work. That is exactly

what happened here.

Plaintiff testified at the administrative hearing that he worked with Painter

Masonry while he was on work release from prison in late 2006 and early 2007. (R.

845.) He testified that as his time in work release came to a close he was

unsuccessful in finding other employment. (R. 846.) Because Plaintiff could not find

other work, Painter Masonry “decided to, instead of them sending me back, you know,

to try to help me out and give me a job there around the shop there to help them out a

little.” (R. 838-39.) Notably, with respect to his job duties, he testified that “they would

let me work around the office some there, so I kind of helped the mechanic, you know,

hand him tools and stuff, or, or – but they would not allow me to lift anything. Matter of

fact, if I had to lift anything there, they would have had me arrested, so I would have

went right back (INAUDIBLE). That was their agreement with me, not to lift anything, to

just, you know, sweep up somewhere or whatever, you know, that needed done around

- -” (R. 846.)

ALJ Abruzzo concluded that Plaintiff was able to perform his past relevant work

as an office helper. (R. 502.) In reaching that conclusion ALJ Abruzzo relied upon the

22

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 22 of 29
testimony of the VE, who testified that an individual with claimant’s vocational profile is

capable of performing the duties of office helper, as the plaintiff actually performed that

job during his work release program in 2006. (R. 502.) Consequently, whether the

duties actually performed by Plaintiff in the work release program were inconsistent with

the duties listed in the DOT for office helper or simply did not include all of the duties

listed in the DOT for office helper makes no difference. Because the ALJ concluded

that Plaintiff could perform the job Plaintiff actually performed in the work release

program as an office helper - and not the job as generally performed in the national

economy - there was no error in concluding that Plaintiff could perform past relevant

work.

The discussion is, however, entirely academic because the ALJ alternatively

went on to step five of the sequential analysis, and relying upon the further testimony of

the VE, found that Plaintiff could perform other work which exists in significant numbers 

in the national economy. Thus, even if Plaintiff could not perform his past relevant work

as office helper the finding that he was not disabled was still correct because the ALJ

concluded at step five that Plaintiff was capable of performing other work which exists in

significant numbers in the national economy. Specifically, ALJ Abruzzo noted that

“should any reviewing authority re-weigh the evidence and determine the office helper

position was not past relevant work, the undersigned continues this analysis into an

alternative Step 5 decision below.” (R. 502.) At Step Five, the burden shifts to the

Commissioner to prove that other jobs exist in the national economy that the claimant

can do, given his RFC, age, education and work experience. Wolfe v. Chater, 86 F.3d

1072, 1077 (11 Cir. 1996). If the claimant is able to do other work, he is not disabled. 

th

23

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 23 of 29
The ALJ must articulate specific jobs that the claimant is able to perform, and this

finding must be supported by substantial evidence. Wilson v. Barnhart, 284 F.3d 1219,

1227 (11 Cir. 2002). th

The VE testified in response to a hypothetical question that an individual with

Plaintiff’s RFC, and vocational profile could perform the occupations of counter clerk,

routing clerk, food/beverage order clerk, and new account interviewer. (R. 503.)

According to the VE, each of these jobs exist in significant numbers in Florida and in

the national economy. (R. 503.) Accordingly, based upon the VE’s testimony ALJ

Abruzzo concluded that Plaintiff has been capable of making a successful adjustment

to other work that exists in significant numbers in the national economy and therefore

was not disabled. (R. 503.) Therefore, even if Plaintiff’s past job as an office helper

does not constitute past relevant work at step four, the ALJ did not err in finding that

Plaintiff was not disabled because the ALJ properly found at step five that Plaintiff could

perform other work. 

B. Plaintiff’s Credibility

Plaintiff’s second challenge is that ALJ Abruzzo violated the Eleventh Circuit pain

standard in finding the Plaintiff was not fully credible. A fundamental problem with

Plaintiff’s argument is that it is based almost entirely upon medical evidence which

concerns medical treatment and examination years after the Plaintiff’s date last insured

of December 31, 1999. 

As part of his credibility finding ALJ Abruzzo concluded that “the claimant’s

medically determinable impairments could reasonably be expected to produce some of

the alleged symptoms, but that the claimant’s statements concerning the intensity,

24

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 24 of 29
persistence and limiting effects of these symptoms are generally not credible.” (R.

499.) In support of this conclusion the ALJ expressly found that Plaintiff’s “subjective

allegations are at times internally inconsistent and frequently inconsistent with the

objective medical evidence, and therefore generally not reliable.” (R. 500.)

 Plaintiff entire argument cites exclusively to medical evidence in the record from

February 2003 through March 2008. In order to demonstrate that Plaintiff is entitled to

Title III disability insurance benefits, however, he must establish that he became

disabled prior to the expiration of his insured status. 42 U.S.C. § 423(a)(1)(A), (c)(1). 

Because the only issue before the Court is whether the Commissioner erred in rejecting

Plaintiff’s Title II claim, medical evidence that is not contemporaneous with Plaintiff’s

insured status is relevant only to the extent that it bears upon Plaintiff’s condition prior

to his date last insured. Casey v. Secretary of Health and Human Services, 987 F.2d

1230, 1233 (6 Cir. 1993)(evidence dated after date last insured is “outside the scope th

of our inquiry”); Selk v. Barnhart, 234 F.Supp.2d 1006, 1014-15 (S.D. Iowa 2002)(noting

that “subsequent medical, psychological, and psychiatric evaluations are relevant to the

extent they reflect upon the claimant's condition as of the date last insured”). Thus, the

evidence cited by Plaintiff has at best only marginal relevance to Plaintiff’s Title II claim

because none of it relates to the severity of Plaintiff’s impairments between the alleged

onset date of April 23, 1999 and his date last insured of December 31, 1999.

A review of the medical evidence cited by Plaintiff covering the time period after

the expiration of Plaintiff’s date last insured, discloses that none of the evidence

includes information, examination or diagnoses that relate to the Plaintiff’s condition

prior to his date last insured, December 31, 1999. Notably, although Plaintiff testified at

25

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 25 of 29
the administrative hearing that 1999 was when he “started having so much trouble with

my neck,” he admitted that the first time he was diagnosed as having some problem

with his neck was in 2003 when he visited the Shands ER. (R. 852.) Moreover, there is

no medical evidence in the record from the year 1999 and the only medical evidence

from 1998 in the record are the progress notes from an October 1, 1998 visit to Family

Medical Practice for treatment of a rash. (R. 285.) The last medical evidence in the

record for the period prior to 1999 that specifically relates to Plaintiff’s back or neck

issues are the records from his July 12, 1995 visit to the North Florida Regional Medical

Center ER for pain caused by his cutting down a tree limb. (R. 252.) 

While Plaintiff had spine troubles that eventually required spinal fusion surgery in

February 2003 to correct, there is no suggestion in any of the medical evidence from

2000 onward that prior to December 31, 1999 Plaintiff had suffered from the advanced

spondylitic myelopathy with canal stenosis and moderate cord compression that

necessitated surgery in 2003. CT scans from December 12, 2000 only showed that

Plaintiff had a slight loss of disc height at L3-L4 and probably L5-S1 and mild

discogenic disease at L3-L4, L4-L5 and probably L5-S1. (R. 452.) There was no

suggestion, however, in those scans that these issues rose to a level that required

surgical intervention. (R. 452.)

ALJ Abruzzo extensively reviewed both the pre-1999 and post-1999 medical

evidence in the record and determined that it did not support Plaintiff’s subjective

complaints. In his decision the ALJ articulated numerous examples supporting his

conclusion that Plaintiff’s subjective complaints were not credible. For instance, the

ALJ noted that Plaintiff reported to the ER on July 12, 1995 complaining of severe pain,

26

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 26 of 29
but was able to arise from a back board and walk to the restroom without a limp. (R.

500.) Plaintiff also complained of severe lower back pain in June 1994, but MRI scans

of his cervical and lumbar spine showed minimal disc bulging without nerve root

compression. Plaintiff’s treating orthopedist, Dr. Kennedy, concluded that Plaintiff was

not suffering from a significant degree of stenosis nor was there significant neural

impairment. (R. 201, 209.)

In addition to his review of the medical evidence, ALJ Abruzzo also relied upon

Plaintiff’s activities of daily living as support for his conclusion that Plaintiff’s subjective

complaints were not credible. For example, Plaintiff reported to personnel at Family

Medical Practice in October 1998 that he had acquired a rash after spending time

moving large amounts of wood. (R. 285.) Similarly, Plaintiff visited the North Florida

Regional Medical Center in July 1995 complaining of severe back pain, caused while he

was on a ladder cutting down a tree limb. (R. 252.) Furthermore, Plaintiff told Shands

ER personnel on a March 2004 visit that the source of his reported neck pain was that

he had been doing a lot of heavy lifting the previous day. (R. 405, 408.) ALJ Abruzzo

discussed and cited each of these as examples of activities on Plaintiff’s part that were

inconsistent with his subjective complaints of disabling pain.

ALJ Abruzzo’s determination that Plaintiff’s subjective complaints were not

credible is further supported by other medical evidence in the record. A number of

Plaintiff’s treating physicians commented that Plaintiff claimed to suffer from pain that

was inconsistent with his physical symptoms. For example, on a visit to Dr. Henn on

July 31, 2003 Plaintiff reported that he had reinjured his neck while incarcerated and

that he was suffering from neck pain. Dr. Henn noted that “[o]verall, Mr. Douglas is

27

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 27 of 29
doing quite well” and that “[o]n examination he looks well with good strength in upper

and lower extremities.” (R. 392-93.) On November 18, 2005 Plaintiff asked for

Percocet for what he reported as severe pain from his left neck mass, but was “advised

that it is felt that he has been taking too many narcotics for the amount of pain that

would be expected for his type of surgery.” (R. 777.) The otolaryngologist that

removed the left neck mass, Dr. Douglas Villaret, noted on January 6, 2006 that

“Patient continues to have excessive amounts of pain that are not common with this

procedure.” (R. 767.)

Furthermore, in rejecting Plaintiff’s subjective complaints of pain, ALJ Abruzzo

noted that there was evidence of “drug seeking” behavior. The record more than amply

demonstrates that almost every physician who treated Plaintiff expressed concern with

the amount of narcotic prescription medication Plaintiff was either taking and/or asking

for, and several of the physicians refused to continue writing prescriptions for Plaintiff. 

This evidence begins as early as 1995 when Dr. Klein raised concerns regarding

Plaintiff’s substance abuse and continued to as late as March 2008 when Dr.

Valenstein raised similar concerns. (R. 214, 661.)

In sum, there is no merit to Plaintiff’s contention that the ALJ violated the

Eleventh Circuit pain standard in rejecting Plaintiff’s credibility. Plaintiff’s entire

argument relies upon medical evidence, which post dates the date last insured by

several years. Moreover, ALJ Abruzzo carefully reviewed and relied upon the medical

evidence in determining that Plaintiff’s subjective complaints were not credible. And to

some degree the ALJ properly noted that the medical evidence suggests that Plaintiff’s

complaints of pain may have been generated because of “drug seeking” behavior.” 

28

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 28 of 29
Accordingly, the Court concludes that ALJ Abruzzo’s rejection of Plaintiff’s subjective

complaints of pain was supported by substantial evidence and that ALJ Abruzzo

articulated specific reasons for his credibility finding.

V. RECOMMENDATION

In view of the foregoing, it is respectfully RECOMMENDED that the decision of

the Commissioner should be AFFIRMED. 

IN CHAMBERS in Gainesville, Florida, on June 9, 2011.

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

29

Case 1:10-cv-00008-MP-GRJ Document 23 Filed 06/09/11 Page 29 of 29