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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

 GAINESVILLE DIVISION

BOBBY E. SOLOMON,,

Plaintiff,

v. Case No: 1:09cv183/MMP/MD

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

_______________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, Bobby E. Solomon, filed an application for disability insurance

benefits claiming an onset of disability as of July 26, 2004. The application was

denied initially and on reconsideration, and Mr. Solomon requested a hearing before

an Administrative Law Judge (ALJ). After the hearing the ALJ issued a decision that

was partially favorable and partially unfavorable. The ALJ determined that plaintiff

was disabled during the period July 26, 2004 through August 15, 2005, but found

further that plaintiff experienced medical improvement as of August 16, 2005 and

was no longer disabled. The Appeals Council declined review. Plaintiff then filed

the instant appeal. The court remanded the case because defendant could not

produce a transcript. 

On remand the ALJ held a second hearing at which Mr. Solomon was

represented by counsel and testified. A vocational expert also testified. The ALJ

again issued a decision that was partially favorable and partially unfavorable. The

ALJ again determined that plaintiff was disabled during the period July 26, 2004

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through August 15, 2005, but found further that plaintiff experienced medical

improvement as of August 16, 2005 and was no longer disabled (Tr. 372-387). 

Plaintiff again sought review. This time the Appeals Council accepted

jurisdiction, stating that the ALJ had found medical improvement as of August 16,

2005 “but did not cite specific evidence in the record in support of that finding.” (Tr.

408). The Appeals Council further noted that it intended to issue a decision “to

clarify the basis for such finding.” (Id.) Plaintiff’s counsel was invited to brief the

issue further, but failed to do so (Tr. 355). The Appeals Council then conducted a

thorough review of the record and issued its decision on June 24, 2011. It found, as

had the ALJ, that plaintiff was entitled to a closed period of disability but that his

entitlement to benefits ended as of August 16, 2005 because of medical

improvement. The Appeals Council’s decision of June 24, 2011 was therefore the

final decision of the Commissioner, and therefore subject to review in this court. 

Falge v. Apfel, 150 F.3d 1329 (11th Cir. 1998). 

The case is now back before this court after remand. On January 3, 2012 the

Commissioner filed his answer to the complaint with a copy of the official transcript

(doc. 22), and plaintiff filed his reply (doc. 23).

STANDARD OF REVIEW

This case is different from most because the final decision of the

Commissioner is not the decision of the ALJ. Rather, because the Appeals Council

accepted jurisdiction and issued its own decision, the scope of review by this court

is directed to the Appeals Council’s decision. Parker v. Bowen, 788 F.2d 1512, 1520-

22 (11th Cir. 1986) (holding that if the Appeals Council renders a decision, that

decision, and not the decision of the ALJ, is the one the court must consider, and

the Appeals Council is entitled to make its own credibility findings based on the

record before it and is not bound by the findings of the ALJ if it gives reasons for

rejecting the ALJ’s findings.) The Appeals Council’s decision is entitled to the same

deference as the decision of an ALJ. Id. 

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The court’s review of the Commissioner’s decision is limited to whether

substantial evidence supports the decision and whether the correct legal standards

were applied. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). “Substantial

evidence is more than a scintilla and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Crawford v. Comm’r of

Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). “Under this limited standard of

review, we may not make fact-findings, re-weigh the evidence, or substitute our

judgment for that of the [Appeals Council].” Moore v. Barnhart, 405 F.3d 1208, 1211

(11th Cir. 2005).

A person who applies for Social Security disability benefits must prove his

disability. See 20 C.F.R. § 404.1512. Disability is the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than 12 months.” 42

U.S.C. § 423(d)(1)(A).

Credibility determinations about subjective testimony generally are reserved

to the [Commissioner]. See Johns v. Bowen, 821 F.2d 551, 557 (11th Cir. 1987). But

if the [Commissioner] “decides not to credit such testimony, he must articulate

explicit and adequate reasons for doing so.” Holt v. Sullivan, 921 F.2d 1221, 1223

(11th Cir. 1991). In addition, there is “a three part ‘pain standard’ that applies when

a claimant attempts to establish disability through his or her own testimony of pain

or other subjective symptoms.” Id. This standard requires these things:

(1) evidence of an underlying medical condition and either (2) objective

medical evidence that confirms the severity of the alleged pain arising

from that condition or (3) that the objectively determined medical

condition is of such severity that it can be reasonably expected to give

rise to the alleged pain.

Id.

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In assessing the credibility of plaintiff’s testimony concerning pain the

Commissioner may consider whether the claimed intensity of the pain is consistent

with the reports of treating and examining physicians, and whether it is consistent

with the plaintiff’s daily activities. See 20 C.F.R. § 404.1529(c)(3) (the Commissioner

may consider a claimant’s daily activities when evaluating his complaints of pain).

When a claimant proves that he no longer can perform his past relevant work,

the burden shifts to the Commissioner to show that, in the light of the claimant’s

residual functional capacity, age, education, and work experience, “there is other

work available in significant numbers in the national economy that the claimant is

able to perform.” Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). “The

[Commissioner] must articulate specific jobs that the claimant is able to perform,

and this finding must be supported by substantial evidence, not mere intuition or

conjecture.” Wilson, 284 F.3d at 1227.

The “preferred method” of demonstrating that a claimant can perform other

jobs is through the testimony of a vocational expert (“VE”). Id. For a VE’s testimony

to constitute substantial evidence, the ALJ must pose a hypothetical question that

comprises all of the claimant’s impairments. See Vega v. Comm’r of Soc. Sec., 265

F.3d 1214, 1220 (11th Cir. 2001). But the ALJ is not required to include in the question

claims of impairment that he has found to be unsupported. Crawford, 363 F.3d at

1161.

In cessation cases, the “appropriate inquiry is whether the [Commissioner’s]

finding of improvement to the point of no disability is supported by substantial

evidence.” Id. at 1322, quoting Chumbley v. Shalala, Case No. 92-12VAL (RLH),1994

WL 774030, at * 3 (M.D. Ga. November. 22, 1994) (citations omitted). In order to find

that the claimant’s condition has improved, the Commissioner “must compare

original medical evidence [which supported a finding of disability] and new medical

evidence.” (Emphasis added). Id. at 1322, citing Williams v. Apfel, 73 F. Supp.2d

1325, 1337 (M.D. Fla. 1999) (citing Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th

Cir.1984)). The burden is on the Commissioner to show that there has been medical

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improvement; and, in order to show this, there must be evidence of medical

improvement in the form of “symptoms, signs, and laboratory findings.” 20 C.F.R.

§ 404.1594(b). Medical improvement is “any decrease in the medical severity” of a

claimant’s impairment that was present at the time of the most recent favorable

decision. See 20 C.F.R. § 404.1594(b)(1). A decrease in medical severity “must be

based on changes (improvement) in the symptoms, signs and/or laboratory findings”

associated with the impairment. See 20 C.F.R. § 404.1594(b)(1). 

MEDICAL HISTORY

On July 26, 2004 Mr. Solomon tore a meniscus in his right knee while working

as a tile setter (Tr. 291, 359). He underwent surgery and injections and participated

in physical therapy (Tr. 162-205, 283-90, 359). Mr. Solomon returned to see his

treating physician, William Blake, M.D., on March 21, 2005 (Tr. 282). Dr. Blake noted

that Mr. Solomon’s knee did not bend beyond 110 degrees (Tr. 282, 359). Dr. Blake

felt that Mr. Solomon could not do any type of kneeling activities. This would

preclude his prior work as a tile setter (Tr. 282). There is no indication that Mr.

Solomon saw Dr. Blake or any other physician for specific knee complaints after

March 2005 (Tr. 359-60). 

Mr. Solomon was examined by Eftim Adhami, MD on August 16, 2005. Dr.

Adhami noted limitation in knee range of motion only at an extreme angle (Tr. 301,

359).1

 Plaintiff had some tenderness, but walked normally without a cane (Tr. 299,

359). Jorge Camacho, M.D., noted that Plaintiff had a normal gait and normal muscle

tone in July 2005 (Tr. 248). 

Mr. Solomon used a CPAP mask to help his breathing at night, which resulted

in improved sleep (Tr. 249-50). Pulmonary function studies done on October 17,

2005 showed only mild asthma (Tr. 303).

1

Dr. Adhami’s notes indicated that Mr. Solomon’s knee had limited range of motion

at the extreme angle, but his detailed chart showed it to be normal. His further opinion that

Mr. Solomon could walk normally without a cane supports a finding of full range of motion.

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DISCUSSION

Relative to the issues raised in this appeal, the Appeals Council found that

Mr. Solomon had severe impairments of morbid obesity, meniscal injury to the right

knee and asthma, and that he was disabled as defined in the Act from July 6, 2004

through August 15, 2005, but not thereafter; that he was a younger person with a

high school education with no transferrable skills; that medical improvement

occurred as of August 16, 2005; that after that date Mr. Solomon could stand and/or

walk up to four hours per day, could do limited pushing with his legs, could

occasionally balance, stoop and crouch but should not kneel crawl or climb; that he

should avoid fumes and other situations relating to breathing and should avoid

moderate exposure to hazards; that he could perform a reduced range of work at the 

sedentary exertional level; that using 20 C. F. R. 404.1569 and Rule 201,28, Table No.

1 of 20 C. F. R. Part 404, Subpart P, Appendix 2 as a framework for decision making,

Mr. Solomon was not under a disability as defined in the Act from August 16, 2005

through June 16, 2010.

Plaintiff’s brief in this case does not address the Appeals Council’s decision. 

It attacks only the ALJ’s decision, which is not before the court. For that reason

alone his appeal should fail. However, the undersigned as reviewed the entire

record and finds that the Appeals Council’s decision was supported by substantial

evidence and should be affirmed.

The Appeals Council found that Mr. Solomon was disabled as defined in the

Act from July 6, 2004 through August 15, 2005. It further found that he experienced

medical improvement as of August 16, 2005 and therefore was no longer disabled. 

The medical evidence showed that range of motion in Mr. Solomon’s knee increased

and he was able to walk without his cane, the medical evidence also showed a

decrease in severity of his knee problems. There was no medical evidence to the

contrary. Therefore, the Appeals Council properly found that Plaintiff experienced

medical improvement as of August 16, 2005 (Tr. 359).

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The Appeals Council’s decision was supported by substantial record

evidence, and plaintiff is not entitled to reversal. Accordingly, it is respectfully

RECOMMENDED that the decision of the Commissioner be AFFIRMED, that this

action be DISMISSED and that the clerk be directed to close the file. 

At Pensacola, Florida this 18th day of October, 2012.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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 (11th Cir. 1988).

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