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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TIMOTHY CLIFTON,

Plaintiff, 

v. Case No. 5:10cv154/RS/CJK

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

REPORT AND RECOMMENDATION

This case has been referred to the undersigned magistrate judge pursuant to the

authority of 28 U.S.C. § 636(b) and Northern District of Florida Local Rules 72.1(A),

72.2(D), and 72.3, relating to review of administrative determinations under the

Social Security Act (“Act”) and related statutes, 42 U.S.C. §§ 401-1400v. The case

is now before the court pursuant to 42 U.S.C. § 405(g), for review of a final

determination of the Commissioner of Social Security (“Commissioner”) denying

plaintiff’s application for disability insurance benefits under Title II of the Act, 42

U.S.C. §§ 401-34, and supplemental security income (“SSI”) benefits under Title XVI

of the Act, 42 U.S.C. §§ 1381-83.

PROCEDURAL HISTORY

Plaintiff (Mr. Timothy Clifton, who will be referred to by name, as plaintiff,

or as claimant) protectively filed his applications for benefits on January 31, 2006.

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T. 23, 121-29. They were denied initially and on reconsideration. T. 23, 72-79, 82-

1

94. After a hearing, an administrative law judge (“ALJ”) issued a decision on

October 22, 2008, finding that plaintiff was not disabled under the Social Security

Act at any time through the date of her decision. T. 23-33. The Appeals Council of

the Social Security Administration denied plaintiff’s request for review on April 15,

2010, rendering the ALJ’s decision the final decision of the Commissioner. T. 1-3.

In the present action for review of the Commissioner’s decision , Mr. Clifton

raises two issues (as stated in his memorandum) (doc. 16):

1) Although at least three physicians, including Dr. J. Walter Jacobs, Ph.D., Dr.

David J. Smith, Ph.D., and Dr. Suzanne Zoss, Ph.D., diagnosed the plaintiff

with Major Depressive Disorder and Anxiety Disorder producing restrictions

in his ability to function, the ALJ did not even consider his mental impairments

to be severe.

2) While the ALJ references the medical evidence of record in the Decision, this

reference presents a bias favorable to the Commissioner by omitting portions

favorable to the plaintiff or misrepresenting statements by the health care

professionals.2

FINDINGS OF THE ALJ 

In his written decision the ALJ made several findings relative to the issues

raised in this appeal:

 The administrative record, as filed by the Commissioner, consists of nine volumes (doc. 1

12-1 through 12-9), and has 541 consecutively numbered pages. References to the record will be

by “T.” for transcript, followed by the page number.

Plaintiff’s memorandum identifies these two issues for review, but the argument section 2

of the memorandum states only one issue, apparently collapsing the two issues initially identified

into one “omnibus” issue concerning the ALJ’s handling of the psychological evidence. 

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1) Claimant has not engaged in substantial gainful activity since December 21,

2005, the alleged onset date.

2) Claimant has the following severe impairments: degenerative disc disease of

the cervical and lumbar spine, post traumatic arthritis of the right elbow, and

right shoulder impingement.

3) Claimant’s medically determinablemental disorders of depression and anxiety,

considered singly and in combination, do not cause more than minimal

limitation in the claimant’s ability to perform basic mental work activities and

are therefore nonsevere. 

4) Claimant does not have an impairment or combination of impairments that

meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1.

5) Claimant has the residual functional capacity to perform light work as defined

in 20 C.F.R. §§ 404.1567(b), 416.967(b), except claimant can only

occasionally climb, balance, kneel, crouch, crawl, and reach overhead with his

right (non-dominant) arm. He must avoid working at heights, including

activities that require climbing ladders, scaffolds, or related implements. The

ALJ found that claimant’s medically determinable impairments could

reasonably be expected to produce his alleged symptoms; however his

statements concerning the intensity, persistence, and limiting effects of these

symptoms are not credible to the extent they are inconsistent with the ALJ’s

assessed residual functional capacity.

6) Claimant is unable to perform his past relevant work, but, based upon his

residual functional capacity, age, education, and work experience, is able to

perform jobs that exist in significant numbers in the national economy.

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Accordingly, the ALJ found plaintiff has not been under a disability, as defined by

the Act, since the date he filed his application. T. 9-33. 

STANDARD OF REVIEW

“Review of the Commissioner’s final decision is limited to determining

whether the decision is supported by substantial evidence from the record and was a

result of the application of proper legal standards.” Olds v. Astrue, No.

5:09cv319/RS/EMT, 2011 WL 691595, at *1 (N.D. Fla. Jan. 19, 2011); see also

Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 Cir. 1991) (“[T]his Court may reverse

th

the decision of the [Commissioner] only when convinced that it is not supported by

substantial evidence or that proper legal standards were not applied.”). Substantial

evidence is “‘such relevant evidence as a reasonable person would accept as adequate

to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)). The court “may not decide

the facts anew, reweigh the evidence, or substitute [its] judgment for that of the

Secretary[.]” Martin v. Sullivan, 894 F.2d 1520, 1529 (11 Cir. 1990) (quoting th

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11 Cir. 1983)). th

The Social Security Act defines a disability 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 the plaintiff is not only unable to do her previous work, “but cannot,

considering [her] age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy.” Id. § 423(d)(1)(A).

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

disability claim in five steps:

1. If the claimant is performing substantial gainful activity, she is not disabled.

2. If the claimant is not performing substantial gainful activity, her impairments

must be severe before she can be found disabled.

3. If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period of

at least twelve months, and if her impairments meet or medically equal the criteria of

any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is

presumed disabled without further inquiry.

4. If the claimant’s impairments do not prevent her fromdoing her pastrelevant

work, she is not disabled.

5. Even if the claimant’s impairments prevent her from performing her past

relevant work, if other work exists in significant numbers in the national economy

that accommodates her residual functional capacity and vocational factors, she is not

disabled.

Claimant bears the burden of establishing a severe impairment that keeps her

from performing her past work. See 20 C.F.R. § 404.1512. “If the claimant

establishes such an impairment, the burden shifts to the Commissioner at step five to

show the existence of other jobs in the national economy which, given the claimant’s

impairments, the claimant can perform.” Olds, 2011 WL 691595, at *2. “If the

Commissioner carries this burden, the claimant must then prove [she] cannot perform

the work suggested by the Commissioner.” Id.

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FACT BACKGROUND AND MEDICAL HISTORY3

Plaintiff suffered an industrial accident in 2000, resulting in a workers’

compensation claim and an award of a closed period of Social Security disability. 

The accident occurred when Mr. Clifton touched an electric wire and fell from an

eight-foot ladder. T. 507. He returned to work in 2002, but has not worked since

early 2004. In the disability application, when asked what injuries, illnesses, or

conditionslimit his ability to work, plaintiff responded, “Smashed right arm, cervical

bulging discs, bone spurs in spine, impingement in rightshoulder, anxiety, lower back

pain which causes legs to hurt, left arm is starting to swell.” T. 155.

On June 13, 2000, Mr. Clifton underwent surgeries by Dr. GregCook, Franklin

Orthopaedics and Sports Medicine, in Tennessee. Plaintiff had repair of a

comminuted, displaced fracture of the right distal radius humerus, with incision and

drainage of wound, and ulnar nerve transposition at the right elbow. T. 344. After

a year, plaintiff had some improvement, but still had pain as well as some loss of

flexion and extension. T. 343. By an office visit with Dr. Cook in October 2001,

plaintiff had some aching pain at night, minimal swelling over the hand, and fairly

good range of motion. X-rays showed good placement of the fixating screw, and a

basically congruent articular surface. T. 335. Plaintiff had reached maximum

medical improvement several months before, and Dr. Cook expected slow progress

in plaintiff’s activities. T. 335. Some aching will persist for life. T. 335. At his last

office visit with Dr. Cook, in August 2002, plaintiff still had lost range of motion

with no gross instability or significant swelling. He had some atrophy around the

 Although intended to be thorough, and to provide an overview of plaintiff’s history of 3

care and treatment, this synopsis of medical evidence will be supplemented as called for in the

Analysis section.

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right elbow. X-rays showed nicely healed fractures, with no evidence of bone spurs

or other significant changes. T. 334. 

Beginning in February 2004, Mr. Clifton sought care at Lynnville Medical

Clinic (also referred to as Lewisberg Medical Clinic) in Tennessee. T. 258-76. A

cervical spine x-ray of February 10, 2004, showed mild joint hypertrophy, and mild

narrowing of the disc spaces, leading to an impression of mild degenerative changes. 

T. 290. An x-ray of May 25, 2004, revealed some arthritis in the right elbow joint

without acute fracture or dislocation. T. 289. He was diagnosed with neck, shoulder,

and elbow pain, as well as depression. T. 269. The clinic appears to have provided

anaesthetic injections. T. 265-69.

On May 5, 2004, plaintiff admitted himself to Bay Medical Behavioral Health

Center in Panama City. T. 251-55. He stated he had a nervous breakdown, and

wanted to kill himself. T. 252. An examination by Dr. Ira Weiner produced an

assessment of adjustment disorder, generalized anxiety disorder, and social anxiety

disorder. T. 253. He was discharged the next day with a referral to Life Management

Center. T. 251.

Upon referral from Dr. Charles Sidberry, plaintiff sought treatment from Dr.

Ata Ul Moshin, Comprehensive Pain Medicine, Panama City. T. 314-29. Dr. Ul

Moshin performed an initial assessment and diagnosed neck pain with degenerative

disc disease, low back pain, and chronic use of narcotic medications. T. 329. 

Plaintiff was able to sit, stand, and walk without assistance. He had antalgic gait (an

indication of pain with weight-bearing). He had decreased range of motion in the

neck and lower back, especially at forward flexion and backward extension. The

straight leg raising test was positive on both sides. T. 327. Dr. Ul Moshin believed

plaintiff had chronic neck pain, chronic low back pain, and right shoulder pain. T.

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323. On October 20, 2005, Comprehensive Pain Medicine administered six trigger

point injections in the neck and shoulder region. T. 316-17. On November 11, 2005,

Mr. Clifton reported relief from these injections. T. 313. Dr. Ul Moshin discussed

long term pain management. Shortly thereafter, a cervical MRI showed disc

degeneration throughout the cervical spine with spondylosis at multiple levels in the

cervical spine. The study showed mild spinal canal stenosis at C5-6, secondary to

spondylosis and bulging disc material. T. 331.

On March 23, 2006, plaintiff self-referred to Southern Orthopedic Specialists

in Panama City, reporting right arm pain. X-rays ordered that day revealed severe

arthritis of the radial capitular joint along with olecranon humeral joint, of the right

elbow. T. 362-64. Plaintiff also reported neck pain. Southern Orthopedic

recommended further treatment. T. 362. Soon afterward, plaintiff had a right

shoulder injection, but Dr. Williams, who performed the procedure, felt he might

require further surgery–arthroplasty with a fascia graft–or even a total elbow

replacement, a procedure for which the doctorthought plaintifftoo young to undergo. 

T. 360.

On October 17, 2006, plaintiff underwent right elbow arthroscopy with

removal of loose body and debridement. The procedure was performed by Dr. Orvis

Chitwood of Dothan, Alabama, under general anesthesia. T. 435. The arthroscopy

revealed a large amount of scar tissue. On October 30, 2006, Dr. Chitwood planned

to continue pain medication and work on range of motion. T. 433. The Occupational

Medicine Division of Dr. Chitwood’s practice reported on December 4, 2007, that

plaintiff could work in the light physical demands classification, but also reported that

the testing was possibly invalid due to plaintiff’s poor effort, resulting in inconsistent

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test results. The Functional Capacity Evaluation report stated, “His overall attitude

and actions were not indicative [of] someone in level of pain.” T. 496-97.

Also on referral from Dr. Chitwood, plaintiff began care at Southeast Pain

Management Center, Dr. David Evans, in July 2008. T. 507-27. Dr. Evans diagnosed

pain in upper arm and shoulder with advanced post-traumatic arthritis in the right

elbow. T. 511. In September 2008, Mr. Clifton returned for follow up. In the

interim, he had fallen at home and broken his hand. T. 521. A urinalysis was

inconsistent for his prescribed medications of Tramadol and Darvocet, and positive

for THC. T. 525. Also, in the interim, Dr. Evans had referred plaintiff for

psychological assessment. Dr. Evans felt no return to Southeast Pain Management

was indicated. Also, based on the drug testing, invalid Functional Capacity

Evaluation, and “significantly aberrant psychometric testing,” Dr. Evans had no

recommendations for chronic pain medication or interventions. T. 526.

On August 20, 2008, plaintiff saw Walter Jacobs, Ph.D., on referral from Dr.

Evans, for a psychological evaluation. T. 528-31. The Pain Patient Profile compared

Mr. Clifton to a normative sample of average pain patients. He described himself as

much more depressed and anxious than the average pain patient. Such a level of

emotional distress would severely hamper pain treatment. The somatization score

suggested a preoccupation with physical symptoms that are multiple and magnified. 

Dr. Jacobs diagnosed pain disorder, major depression, panic disorder, and nicotine

dependence. Psychological tests were “extremely pathological.” T. 530. Dr. Jacobs

felt that “given the severity of his emotional distress, Mr. Clifton would probably be

best served by psychiatric management.” T. 531. At a minimum, he should be on

antidepressant medication. He would also benefit from individual counseling

designed to help him cope more effectively with pain and emotional distress. T. 531.

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In conjunction with his disability application, Mr. Clifton underwent several

psychological evaluations. David Smith, Ph.D., performed such an evaluation on July

13, 2006. T. 369-71. Plaintiff evidenced numerous pain behaviors. Dr. Smith

diagnosed moderately severe anxiety and depression, causing moderate impairment

of social functioning, and mild barriers to daily living activities. T. 371. 

Dr. Suzanne K. Zoss diagnosed depressive disorder and anxiety disorder, with

dependent traits. T. 376-83. Dr. Zoss produced a Psychiatric Review Technique

showing moderate restrictions and difficulties in activities of daily living and in

maintaining social functioning. She reported mild difficulty in maintaining

concentration, persistence, or pace. T. 384. Dr. Zoss also completed a Mental

Residual FunctionalCapacity Assessment thatshowed moderate limitation in a range

of categories relating to sustained concentration and persistence, but noted no

significant limitation in other such categories. T. 388-90. Plaintiff would be

moderately limited in four of five categories relating to social interaction, including

ability to interact appropriately with members of the public, ability to get along with

coworkers or peers, and ability to maintain socially appropriate behavior. T. 389. 

Dr. Zoss concluded that plaintiff can perform simple repetitive tasks on a sustained

basis within his physical limitations and would do best in work that does not require

extensive interaction with others. T. 390.

On October 26, 2006, Cheryl Woodson, Psy.D., performed a psychological

review. T. 418-31. Dr. Woodson diagnosed moderately severe depression and

anxiety disorder with dependent traits, and felt these would be “mild barriers to daily

living.” T. 431.

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On August 18, 2006, Dr. Du Nguyen completed a PhysicalResidual Functional

Capacity Assessment. T. 392-99. This report established exertional limitations

including occasional lifting of 20 pounds, frequent lifting of 10 pounds, ability to

stand or walk about 6 hours in an 8-hour workday, and ability to sit about 6 hours in

an 8-hour workday. The examiner found Mr. Clifton’s statements on pain and

limitation “partly credible” but did not elaborate upon that conclusion. T. 397.

On December, 7, 2006, Dr. Karen Kuhns performed another Physical Residual

Functional Capacity Assessment. T. 445-52. This examination noted the October

arthroscopy. Noted exertional limitations were essentially the same as those found

by Dr. Nguyen. T. 446.

HEARING BEFORE THE ALJ

Plaintiff Timothy Clifton was 44 years old on the day he appeared for his

hearing. He has a high school education and worked in the field of commercial air

conditioning until January 2004. In June 2000, he sustained a work-related injury to

his right arm. T. 42-43. He received a lump sum workers’ compensation settlement

in 2001, and was able to return to work after that. Plaintiff left work in 2004 because

of issues with his right arm and his back. He testified he is unable to return to work

due to chronic pain and lack of mobility. In particular, he has the most pain in the

low back, right elbow, right shoulder, and right hand. T. 46. He describes his pain

as level eight on a scale of one to ten, and although it comes and goes is always

present to some extent. T. 48. Plaintiff also said he has pain in his upper back, with

bone spurs. T. 48. He has been told the only treatment remaining for his arm is a

right elbow replacement. T. 50. According to his hearing testimony, he can barely

lift even 5 pounds with his right arm. T. 50. 

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In addition to the arm and back, plaintiff has been told he has “severe anxiety,

depression, and stress.” T. 51. Plaintiff testified he has one to three anxiety attacks

a week. T. 54. He plans to follow up on these issues with a psychiatrist, but at the

time of hearing had not yet seen the doctor. T. 52. 

Upon examination by the ALJ, plaintiff noted he has medicalinsurance through

his girlfriend’s work policy. T. 56. He smokes about two packs of cigarettes a day. 

T. 57. He no longer had a primary care doctor, took no medications at the time, and

had one medical appointment scheduled, that being with the psychiatrist. T. 59. As

for activities, he enjoys coon hunting, but “can’t hardly get out and do that anymore.” 

T. 60. Specifically, he can only hunt every two weeks orso, when someone will drive

him. T. 61. He cares for his four coon dogs, but not for his girlfriend’s chickens. T.

61.

The ALJ called Robert Bradley to give vocational testimony. T. 63-68. In

response to hypothetical questions, Mr. Bradley said plaintiff’s physical limitations

would rule out the type of work he did before his injury. T. 64. Roberts was able to

identify a number of light duty and sedentary jobs within plaintiff’s physical

limitations. T. 64-67. Although the ALJ modified her hypotheticals to take into

account a number of limitations, the one question pertaining to emotional limitations

posited “an individual . . . limited in terms of interaction with the public during the

workday to no more than occasional.” T. 68. This limitation would have eliminated

two of the jobs previously identified. T. 68. 4

Significant to the analysis below, this non-exertional limitation, although included in a 4

vocational hypothetical, did not ultimately become part of the residual functional capacity, as

formulated by the ALJ. T. 29; Report and Recommendation at 3, ante. In any event, as this

Report and Recommendation will suggest, it is not at all clear that this limitation would have

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ANALYSIS

As earlier noted, plaintiff has collapsed his argument into one encompassing 

issue he believes supports reversal or remand. It appears to me that he has done this

because his second issue issimply an argument that the ALJ did not properly consider

the reports and opinions of the evaluating mental health professionals, which, in turn,

led the ALJ to consider the mental impairments as nonsevere. The ALJ did not

ultimately include the mental impairments in her assessment of residual functional

capacity.

The ALJ found that plaintiff’s “medically determinable impairments of

depression and anxiety, considered singly and in combination, do not causemore than

minimal limitation in claimant’s ability to perform basic mental work activities and

are therefore nonsevere.” T. 11. Plaintiff argues this was error, based upon the

totality of the psychological evidence. The Commissioner responds by arguing that

the ALJ properly evaluated plaintiff’s credibility and subjective allegations. Doc. 20,

p. 5. Plaintiff relies upon Social Security Ruling 96-6p, directing that the findings of

agency consultants and other program physicians and psychologists “must be treated

as expert opinion evidence of non-examining sources.” Doc. 16, p. 22. He also relies

upon 20 C.F.R. §§ 404.1527(f)(2), 416.927(f)(2) (stating that ALJs “must consider

findings and other opinions of State agency medical and psychological consultants

and other programphysicians, psychologists, and other medicalspecialists as opinion

evidence, except for the ultimate determination about whether [claimant is]

disabled”). He cites no other regulations or case law to support his argument. The

accounted for all of plaintiff’s emotional impairments.

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initial question thus becomes whether the ALJ’s characterization of mental

impairments and her assessment of residual functional capacity are supported by the

evidence of record. See Carnes, 936 F.2d at 1218. 

Plaintiff’s thrust is that the findings of Dr. Smith (consultant), Dr. Zoss (state

agency consultant), and Dr. Jacobs compel a finding that his depression and anxiety

were at least severe level impairments. In dismissing the mental impairments, the

ALJ found plaintiff had “mild” limitation in activities of daily living, social

functioning, concentration, persistence, or pace, and no episodes of decompensation. 

T. 11-12. In establishing residual functional capacity, the ALJ commented briefly on

the reports of Dr. Smith and Dr. Cheryl Woodson. T. 14. The ALJ does not,

however, seemto have taken into account the totality of the psychologicalrecord, and

seems to have regarded little, if at all, the opinions of Dr. Zoss and Dr. Jacobs. As to

Dr. Jacobs’ report, the ALJ gleaned only that “claimant was likely to magnify and

exaggerate his symptoms for secondary gain and that it was unlikely he would fully

and actively participate in a treatment plan.” T. 15. Respectfully, and as set out just

below, this is not a fair synopsis of Dr. Jacobs’ findings and recommendations. 

Although Dr. Smith did diagnose some moderate impairments, he believed

these would be only mild barriers to daily living activities. Dr. Smith also found the

mental health symptoms to be moderate barriers to social functioning, with guarded

prognosis. T. 371. Dr. Zoss diagnosed depression, anxiety, and dependent traits,

which she concluded would causemoderate restriction of activities of daily living and

ability to maintain social functioning. T. 385.

Dr. Jacobs, who saw plaintiff on referral from a treating physician, diagnosed

major depression, recurrent, moderate to severe. T. 530. According to Dr. Jacobs’

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report, plaintiff had a valid and very pathological profile. Among ten clinical scales,

there were eight high elevations, with seven of those extreme. The depression scale

was extremely elevated. Anxiety was very high. Plaintiff probably experiences panic

attacks. According to the Harris Lingoes subscales, plaintiff is experiencing family

conflict and “has a profound sense of alienization.” T. 529. The paranoia scale was

extremely high, indicating Mr. Clifton is suspicious and distrustful of practically

everyone. “His distrust may reach irrational proportion.” T. 529. He is among those

patients “with the greatest number of symptoms, the most severe symptoms and the

poorest prognosis.” T. 529. The Patient Pain Profile suggests Mr. Clifton is

“obsessively worried, nervous, anxious and agitated.” T. 530. “Other people are

likely to view Mr. Clifton as self centered, reactive, demanding, pessimistic and

complaining.” T. 530. Dr. Jacobs believes plaintiff needs psychiatric management.

T. 531.

The ALJ said that Dr. Woodson had characterized plaintiff’s mental condition

as nonsevere, and causing no more than mild mental limitations. Read in full, Dr.

Woodson’s report notes that plaintiff had moderately severe depression and anxiety,

but these would be only “mild barriers” to daily living. T. 431. She excused his self

admission to a mental hospital in 2004 as “due to an altercation with his girlfriend’s

mother.” T. 431. She did not mention that upon admission to Bay Medical

Behavioral, plaintiff had said he broke down and wanted to kill himself because, “My

girlfriend’s mother says mean stuff to me.” T. 252. One might be tempted to grapple

with the seeming paradox of a man with only mild limitations in daily living and

social functioning, while at the same time checking himself into a mental hospital

because his girlfriend’s mother was “mean” to him.

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At step two of the sequential analysis, 20 C.F.R. § 404.1520(a)-(g), the ALJ

must determine whether the claimant has a severe impairment that keeps him from

performing his past work. 20 C.F.R. § 1520(c). The burden at this step is on the

claimant. Chester v. Bowen, 792 F. 2d 129, 131 (11 Cir. 1986). As to “severe th

impairment,” the Commissioner’s regulations provide:

What we mean by an impairment(s) that is not

severe.

(a) Non-severe impairment(s). An impairment or combination of

impairments is not severe if it does not significantly limit your physical

or mental ability to do basic work activities. 

(b) Basic work activities. When we talk about basic work

activities, we mean the abilities and aptitudes necessary to do most jobs. 

Examples of these include–

(1) Physical functions such as walking, standing, sitting, lifting, pushing,

pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instructions; 

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual work

situations; and 

(6) Dealing with changes in a routine work setting.

20 C.F.R. § 404.1521. The Commissioner has adopted an interpretive ruling that

specifically addresses how to determine whether medical impairments are severe. 

The ruling provides in part: 

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As explained in 20 C.F.R. §§ 404.1520, 404.1521, 416.920(c),

and 416.921, at the second step of sequential evaluation it must be

determined whether medical evidence establishes an impairment or

combination of impairments “of such severity” as to be the basis of a

finding of inability to engage in any SGA [substantial gainful activity].

An impairment or combination ofimpairmentsisfound “not severe” and

a finding of “not disabled” is made at this step when medical evidence

establishes only a slight abnormality or a combination of slight

abnormalities which would have no more than a minimal effect on an

individual’s ability to work even if the individual’s age, education, or

work experience were specifically considered (i.e., the person’s

impairment(s) has no more than a minimal effect on his or her physical

or mental ability(ies) to perform basic work activities). Thus, even if an

individual were of advanced age, had minimal education, and a limited

work experience, an impairment found to be not severe would not

prevent him or her from engaging in SGA. 

SSR 85-28, 1985 WL 56856, at *3 (1985).

Upon review of the evidence, I conclude that substantial evidence does not

support the ALJ’s finding atstep two that Mr. Clifton’s mental impairments were not

severe. The evidence showed that these impairments did, in fact, cause restrictions

in daily living, social functioning, and maintaining concentration, persistence, or

pace. The evidence will not support a conclusion of only “a slight abnormality or a

combination ofslight abnormalities which would have no more than a minimal effect

on an individual’s ability to work . . . .” See id. “An impairment is not severe only

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if the abnormality is so slight and its effect so minimal that it would clearly not be

expected to interfere with the individual’s ability to work, irrespective of age,

education or work experience. Claimant need show only that her impairment is not

so slight and its effect is not so minimal.” McDaniel v. Bowen, 800 F. 2d 1026, 1031

(11 Cir. 1986). Here, Mr. Clifton carried his burden at step two of showing severe th

mental impairments.

I must next determine whether remand is necessary. Unfortunately, plaintiff’s

memorandum, although advancing his claim that the mental impairments are severe,

devotes not a line to the question of whether this shortcoming has resulted in

prejudice to him. “Step two is a threshold inquiry.” Id. Under this step of the

sequential analysis, only the most trivial claims will be rejected. Id. Because step

two is a threshold inquiry, and simply allows the ALJ to proceed to the next step,

which the ALJ did in this case, any error as to the mental impairments must be

examined under a harmless error standard. See Delia v. Comm’r of Soc. Sec., No.

10–15092, 2011 WL 2748622, at *1 (11 Cir. July 14, 2011) (“Because the ALJ gave th

full consideration to the consequences of Delia’s mental impairments on his ability

to work at later stages of the analysis, the error at step two was harmless and is not

cause for reversal.”).

Here, step two was resolved in plaintiff’s favor when the ALJ identified a

number of severe impairments–degenerative disc disease of the cervical and lumbar

spine, post-traumatic arthritis of the right elbow, and right shoulder impingement. 

Plaintiff does not argue that his mental impairment meets a listed impairment, so as

to end the inquiry at step three. Instead, he implicitly argues that the ALJ failed to

properly account for the mental impairments in determining residual functional

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capacity. I draw this inference because in his Conclusion, plaintiff asks for a remand

in order for the ALJ to properly evaluate mental impairments and determine what

effect these impairments have on his ability to work. Doc. 16, p. 25. Without

recognizing the harmless error standard, plaintiff asks for a reformulation of his

residual functional capacity, which is the step five inquiry. If the ALJ has already

sufficiently accounted for the mental impairments at step five, however, no remand

is called for. 

An erroneous finding as to “severe” impairments at step two may improperly

foreclose a claimant’s “ability to demonstrate the merits of her claim for disability

with respect to her former work activities.” Flynn v. Heckler, 768 F.2d 1273, 1275

(11 Cir. 1985). Considering that the ALJ here did not include any mental

th

impairments in her formulation of residual functional capacity, the same can be said

as to that step in the analysis. This is so because impairments must be evaluated in

combination at all stages of the analysis. See Lucas v. Sullivan, 918 F.2d 1567, 1574

(11 Cir. 1990); Swindle v. Sullivan, 914 F.2d 222, 226 (11 Cir. 1990); Davis v. th th

Shalala, 985 F.2d 528, 534 (11 Cir. 1993); 20 C.F.R. §§ 404.1523 and 416.923.

th

Impairments must be evaluated in combination even though some impairments are not

severe. See Hudson v. Heckler, 755 F.2d 781, 785 and n.2 (11 Cir. 1985). The th

Eleventh Circuit has “repeatedly held that an ALJ must make specific and

well-articulated findings as to the effect of the combination of impairments when

determining whether an individual is disabled.” Davis, 985 F.2d at 534. 

On the other hand, even if there is error at step two, a remand is not needed if

the error is harmless. The error is harmless if the ALJ has considered the limiting

effects of the impairment at each succeeding step, along with other impairments. See 

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Reed–Goss v. Astrue, 291 F. App’x 100, 101 (9 Cir. 2008); Riepen v. Comm’r of th

Soc. Sec., 198 F. App’x 414, 415 (6 Cir. 2006); Newton v. Astrue, No. th

1:06-CV-1542-AJB, 2008 WL 915923, at *10 (N.D. Ga. Apr. 1, 2008).

Under the foregoing standard, I must determine whether the step two error has

foreclosed plaintiff’s ability to demonstrate the merits of his claim, and whether the

ALJ has, on account of the error, failed to properly evaluate plaintiff’s impairments

in combination. The ALJ made the following statementsin the course of the step four

analysis of residual functional capacity:

In July of 2006, the claimant underwent a consultative

psychological examination conducted by David Smith, Ph.D., a licensed

psychologist. After conducting his examinationDr.Smith diagnosed the

claimant with depressive disorder NOS, and anxiety disorder NOS, with

dependant traits. He opined that due to his depressive and anxiety

symptoms coupled with maladaptive dependant traits, the claimant had

only mild barriersto activities of daily living and noted that the claimant

was able to care for his dogs, perform housecleaning, and cook. Dr.

Smith indicated that the claimant had moderate barriers to social

functioning, based on his reports that people got on his nerves and that

he avoided social functions as well as the fact that he was observed to

be irritable and moody. Dr. Smith indicated that the claimant was

capable of managing his own funds and assessed a GAF score of 60

which would be indicative of mild to moderate difficulties (Exhibit

10F). This same month State agency psychological consultant Cheryl

Woodson, Psy.D., evaluated the claimant’s mental condition utilizing

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the recognized psychiatric review technique. Her opinion was that the

claimant’s mental impairment was nonsevere and that he had no more

than mild mental limitations (Exhibit 15F)[.]

. . . .

In regards to his psychological issues, the claimant alleged that he

had been diagnosed with severe anxiety, stress, and depression by a

psychiatrist at pain management and that he had been ordered to

undergo therapy. He testified that he had appointments scheduled with

a psychiatrist in the future. He claimed that he experienced anxiety

attacks one to three times per week depending on what his

circumstances are and alleged that they lasted all day on occasion. 

When asked how his anxiety affected him, the claimant indicated that it

made him want to stay isolated in his house.

. . . .

As for the claimant’s alleged mental symptoms, while Dr. Jacobs did

note the claimant complained of symptoms consistent with severe

anxiety, he also noted that the claimant was likely to exaggerate his

symptoms. The independent consultative report prepared by Dr. Smith

indicated that the claimant had minimal mental limitations, and the

claimant’s testimony as to his living situation and relationships tends to

suggest even less social limitation [than] that noted by Dr. Smith. 

Overall the evidence of record would support the assessment of Dr.

Woodson.

T. 28, 29, 30.

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The ALJ assigned a residual functional capacity of light work, with certain

limitations, none of which relate to plaintiff’s mental impairments. T. 26-27. I

conclude that the step two error in this case did prejudice plaintiff. The residual

functional capacity analysis mentions emotional limitations, but only to the extent of

discounting them. As a result, a combination of limitations that includes plaintiff’s 

depression, anxiety disorder, and dependent traits disorder has not been properly

considered. “[A]n ALJ must make specific and well-articulated findings as to the

effect of a combination of impairments when determining whether an individual is

disabled.” Davis, 985 F. 2d at 534. “[I]t is certain that mental and psychological

defects can combine with physical impairments to create total disability to perform

gainful employment.” Bowen v. Heckler, 748 F.2d 629, 634 (11 Cir. 1984). th

The ALJ either mischaracterized, or partially recognized, the evidence of

mental and emotional impairment. The actual differences among most of the various

psychological examiners is not great. Although the ALJ relied upon the summary

conclusions of Dr. Cheryl Woodson, her report is in fairly stark contrast to that of the

numerous other examiners. She found the same disorders, but concluded with little

or no explanation that any limitation would be mild. Such conclusions, particularly

in light of the detailed findings of Dr. Jacobs, fall short when they are viewed as

essentially the only substantial evidence to support the ALJ. See Perales, 402 U.S.

at 401 (defining substantial evidence as “‘such relevant evidence as a reasonable

person would accept as adequate to support a conclusion’” (quoting Consolidated

Edison Co., 305 U.S. at 217)). The ALJ’s statement that Dr. Woodson’s conclusions

are substantiated by the overall evidence of record is not persuasive, and I do not

accept it.

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The error is not, therefore, harmless. Having, for all practical effect,

completely rejected the emotional impairments, the ALJ formulated a residual

functional capacity that did not take into account such impairments. Accordingly,

Mr. Clifton’s combined impairments, and their effect on his ability to perform work,

were not considered. The general rule in Social Security cases where error such as

I have noted here is to reverse and remand for additional proceedings. See, e.g.,

Davis, 985 F.2d at 534. My recommendation for reversal is based upon my

conclusion that the ALJ did not properly weigh all of the evidence in the record. 

Plaintiff asks in his prayer for relief that the case be remanded for proper

consideration of the emotional impairments. The controlling statute provides, “The

court shall have power to enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the Commissioner of

Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §

405(g). Thus, remand for further proceedings is appropriate.

Upon the foregoing, it is respectfully RECOMMENDED that the decision of

the Commissioner be REVERSED, and that this action be REMANDED to the

Commissioner for further proceedings consistent with this report.

At Pensacola, Florida, this 29th day of August, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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