IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DAVID T. RHODEN,

Plaintiff,

vs. CASE NO. 1:11-cv-26-MP-GRJ

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff appeals to this Court from a partially favorable final decision of the

Commissioner of Social Security (the “Commissioner”) regarding Plaintiff’s application

for a period of disability and disability insurance benefits finding Plaintiff disabled as of

December 7, 2006 but not before that date. (Doc. 1.) The Commissioner has answered

(Doc. 12), and both parties have filed briefs outlining their respective positions. (Docs.

19 and 20.) For the reasons discussed below, the Commissioner’s decision is due to

be AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits under Title II of the

Social Security Act (the “Act”) on November 13, 2000 alleging a disability onset date of

November 3, 1999. (R. 52-55.) Plaintiff’s applications were denied initially and upon

reconsideration. (R. 38-41.) Plaintiff then filed a timely request for an administrative

hearing and a hearing was held before Administrative Law Judge (“ALJ”) Gerald F.

Murray on January 13, 2003. (R. 13.) ALJ Murray issued a written decision dated

Case 1:11-cv-00026-MP-GRJ Document 21 Filed 02/14/12 Page 1 of 24
March 11, 2003 denying Plaintiff’s application. (R. 13-31.) Plaintiff then appealed ALJ

Murray’s decision to the Appeals Council, which denied Plaintiff’s request for review on

January 28, 2005. (R. 5-8.) 

Plaintiff then filed a complaint on March 21, 2005 in this District seeking review of

the Commissioner’s denial of his application. See Case No. 1:05-cv-56-MP-AK. On

August 26, 2005 the Commissioner filed a motion to remand that case with directions

that an ALJ further evaluate Plaintiff’s mental impairments and give proper

consideration to the opinions expressed by Plaintiff’s treating physicians. (1:05 cv-56-

MP-AK, Doc. 11.) On October 7, 2005, this Court granted the motion to remand and

remanded that case to the Commissioner pursuant to Sentence Four of 42 U.S.C. §

405(g) to further evaluate Plaintiff’s mental impairments and to give proper

consideration to the opinions expressed by Plaintiff’s treating physicians. (1:05-cv-56-

MP-AK, Doc. 13; R. 475-77.) The Appeals Council remanded the case to an ALJ on

July 8, 2006 with directions for the ALJ to give further consideration to the opinion of

Plaintiff’s treating psychiatrist, Dr. Philip K. Springer, and to evaluate Plaintiff’s mental

impairments in accordance with the relevant regulations. (R. 478-81.)

On January 29, 2007, ALJ Douglas Walker held a hearing and issued a decision

dated April 18, 2007 in which he determined Plaintiff was disabled as of June 7, 2006

but not prior to that date. (R. 583-96.) Plaintiff requested review of ALJ Walker’s

decision by the Appeals Council. (R. 605-09.) On June 18, 2010, the Appeals Council

remanded this case to ALJ Walker with instructions to obtain updated evidence of

Plaintiff’s impairments, give further consideration to Plaintiff’s residual functional

capacity and obtain supplemental testimony from a vocational expert. (R. 598-603.) 

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Case 1:11-cv-00026-MP-GRJ Document 21 Filed 02/14/12 Page 2 of 24
ALJ Walker conducted another administrative hearing on October 1, 2010 and

issued a decision dated December 1, 2010 in which he determined Plaintiff was

disabled as of December 7, 2006, but not prior to that date. (R. 462-74.) Plaintiff then

filed his Complaint in this case on February 15, 2011. (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 1

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.2

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,

3

taking into account evidence favorable as well as unfavorable to the decision.4

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

the decision applies incorrect law, or if the decision fails to provide the district court with

See 42 U.S.C. § 405(g) (2000).

1

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

2 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).

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

3 th

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

4 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

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evidence on which the Commissioner relied).

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Case 1:11-cv-00026-MP-GRJ Document 21 Filed 02/14/12 Page 3 of 24
sufficient reasoning to determine that the Commissioner properly applied the law.5

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 6

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

exists in the national economy.

7

The ALJ must follow five steps in evaluating a claim of disability. First, if a 8

claimant is working at a substantial gainful activity, he is not disabled. Second, if a 9

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

10

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 11

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

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

6

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

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

7

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

8

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).

9

20 C.F.R. § 404.1520(c).

10

20 C.F.R. § 404.1520(d).

11

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relevant work, he is not disabled. Fifth, if a claimant's impairments (considering his 12

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.13

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 14

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

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

15

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

determination that a claimant is disabled or not disabled. 

16

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).

12

20 C.F.R. § 404.1520(f).

13

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

14 th

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

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

15

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

16

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

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Case 1:11-cv-00026-MP-GRJ Document 21 Filed 02/14/12 Page 5 of 24
exertion.” In a situation where both exertional and non-exertional impairments are 17

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

range of employment.18

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 19

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

20

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

A. Personal Background

Plaintiff born on June 7, 1952 was 58 as of his October 1, 2010 administrative

hearing. (R. 1098-99.) Plaintiff has prior work experience as an electrician, as a worker

in a used car lot, as a farm equipment and supply salesman, and as a truck driver. (R.

1101-05.)

B. Evidence Considered By ALJ Walker

The Plaintiff concentrates his arguments on ALJ Walker’s treatment of Plaintiff’s

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

17 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.

18

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

19

See id.

20

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non-exertional impairments of pain and major depressive disorder at various steps of

the sequential evaluation process. Accordingly, the Court will focus its discussion of the

record evidence on the evidence relating to Plaintiff’s pain and major depressive

disorder.

On August 9, 2000, John C. Stevenson, M.D. conducted a neurological

examination of Plaintiff. (R. 215-18). Plaintiff complained of pain and aching between

his shoulder blades, with right hip pain radiating down his leg to the right ankle. (R.

215.) Dr. Stevenson noted that radiographic studies showed no evidence of spinal cord

compression but did show a probable thoracic arachnoid cyst extending from T4-T5 to

the top of T6. (R. 218.) Dr. Stevenson diagnosed Plaintiff with thoracic myofascial

injury and a thoracic arachnoid cyst. (Id.) Dr. Stevenson recommended continued

conservative treatment of Plaintiff’s mid thoracic pain with Plaintiff’s treating pain

management specialist. (Id.). 

On December 27, 2000, Dr. Stevenson also completed a Florida Department of

Health form regarding Plaintiff’s impairments. (R. 210.) In that form, Dr. Stevenson

noted Plaintiff had no loss of motion or deformity of his major joints. (Id.). He also noted

Plaintiff had no definite muscle spasm and reduced muscle strength (4/5) in his right

knee and below his right knee. (Id.) Plaintiff’s grip strength and fine dexterity were

intact. (Id.) Dr. Stevenson also noted Plaintiff had an antalgic gait and he opined

Plaintiff could not squat, walk on his toes, or walk on his heels. (Id.) 

 On May 9, 2002 Plaintiff made his first visit to Philip K. Springer, M.D., a

psychiatrist in Gainesville, Florida. (R. 367-71.) Plaintiff’s chief complaints were

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chronic pain, which Plaintiff told Dr. Springer was psychologically disabling, and

depression. (R. 369, 408.) The progress notes reflect that during the mental status

exam, Plaintiff’s level of psychological distress appeared mild, which was “evidenced by

pain and tension.” (R. 369.) Plaintiff was diagnosed with pain disorder, with the

notation “predominantly medical (chronic)”, and major depressive disorder, recurrent,

unspecified. (R. 406-09.) 

Plaintiff reported back to Dr. Springer on May 13, 2002 complaining of a sudden

downturn in his mood, but Dr. Springer stated that his “view of David’s mental health is

higher than their [Plaintiff’s] own view.” (R. 403-05.) 

On May 17, 2002, Plaintiff’s mental health and contentment were noted as “fairly

good” and Dr. Springer wrote in the progress note “David sees himself as mentally less

healthy than I do.” (R. 395-96.) On May 21, 2002, Plaintiff reported a “definite uplift in

his attitude lately.” (R. 393.) Dr. Springer again wrote in the progress note “David sees

himself as mentally less healthy than I do” and “[m]entally, he appears to be doing quite

a bit better.” (R. 394.) On June 4, 2002, Plaintiff reported he “now feels as if things

aren’t all that bad.” (R. 391.) In the progress note for that visit, Dr. Springer wrote

“[o]verall, he seems to have improved a great deal since the previous session.” (R.

392.)

On June 18, 2002, there “appear[ed] to be moderate improvement in David’s

mental health” and “a definite uplift in his attitude lately.” (R. 387-88.) On July 10,

2002, Plaintiff reported feeling like he was not doing well, but Dr. Springer again wrote

in the progress note “David sees himself as mentally less healthy than I do” and

“[g]enerally, there is a moderate uplift in David’s attitude.” (R. 385-86.) On August 7,

8

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2002 Plaintiff reported not feeling any different but Dr. Springer noted Plaintiff’s “mental

health appeared to be in reasonably good shape today.” (R. 383-84.) On September

4, 2002, Plaintiff reported increasing arthritis in his hands and increased pain in his

thoracic area, but the progress note from that visit reflected “[o]verall mental health

shows a significant improvement.” (R. 380-82.) On October 2, 2002, Plaintiff reported

feeling slightly worse, but Dr. Springer noted “[o]verall mental health has improved

significantly from prior reports.” (R. 378-79.) 

On October 30, 2002, Plaintiff reported not really feeling any differently, and Dr.

Springer noted “[o]verall, mental heath is in a state of relative balance” and “David’s

overall mental health shows major improvement compared to previous reports.” (R.

376-77.) On November 25, 2002, Plaintiff again reported feeling slightly worse, but Dr.

Springer again noted “David’s overall mental health shows major improvement

compared to previous reports.” (R. 374-75.) On December 19, 2002, Plaintiff reported

feeling about the same as he had in the past, and Dr. Springer noted “[o]verall, mental

heath is in a state of relative balance” and “David’s overall mental health shows major

improvement compared to previous reports.” (R. 372-73.) 

Dr. Springer filled out a form entitled “Mental Residual Functional Capacity

Assessment” dated January 13, 2003. (R. 410-12.) The form asked Dr. Springer to put

a checkmark next to a series of questions regarding Plaintiff’s understanding and

memory, concentration and persistence, social interactions and adaptations. (Id.) 

attendance and be punctual within customary tolerances. Dr. Springer checked a

serious of boxes indicating that Plaintiff’s inability to perform a number of mental tasks

was marked. The form, however, does not explain the reasons for the limitations nor is

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there any evidence in the record that diagnostic testing was performed to obtain the

results.

Plaintiff was treated at Meridian Behavioral Healthcare, Inc. (“Meridian”) in

Gainesville, Florida from January 2005 through July 2010. (R. 524-79, 1005-95.) In

21

August 2005, Plaintiff was diagnosed with a major depressive disorder, which was

recurrent and moderate, and his global assessment of functioning (“GAF”) was 45, 22

while the progress note from that visit reflected Plaintiff had “improved minimally in the

last 6 months.” (R. 570-71.) In September 2005, ARNP Paula Stowell ranked Plaintiff’s

progress as a 4 on a scale of 1 (poor) through 10 (good). (R. 552-53.) On October 12

2005, Plaintiff reported feeling “a little better” and Plaintiff’s progress was ranked as an

8 on the same scale. (R. 550-51.) During a visit on October 21, 2005, however,

Plaintiff’s speech was pressured but coherent, and he was assigned a progress score

of 4 by Ms Stowell. (R. 548-49.) On November 22, 2005, Plaintiff reported feeling

stable and Ms. Stowell assigned him a progress score of 8. (R. 546-47.) 

In January 2006, his diagnosis was again major depressive disorder, which was

recurrent and moderate, and his GAF was 45. (R. 568-69.) In March 2006, Plaintiff

was given a progress score of 6-7 and in April 2006 he was assigned a 3-4. (R. 537-

41.) In May 2006, Plaintiff reported he was doing better and was having fewer bad

The majority of the progress notes in the record from Plaintiff’s visits to Meridian are written in

21

nearly indecipherable handwriting. Accordingly, the Court will summarize those portions of the progress

notes which are legible.

Global Assessment of Functioning, or GAF, is a measure of an individual’s psychological, social

22

and occupational functioning. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).

Scores range from 0 to 100 and a score between 41 and 50 represents “serious” symptoms or any serious

impairment in social occupational or school functioning; 51 to 60 represents moderate symptoms or

moderate difficulties in social, occupational or school functioning. Id. at 34.

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days, and Ms. Stowell rated his progress as “Good.” (R. 536-37.) The next month

Plaintiff reported improved moods and Ms. Stowell rated his progress score as a 9. (R.

534-35.) The progress notes from his visit on August 1, 2006 reflects Plaintiff

experienced improved and more stable moods and Plaintiff’s progress was rated as an

8-9, while his GAF was 48. (R. 532-33, 1005-06.) On August 25, 2006 his progress

was rated as a 7-8. (R. 530-31.) In October 2006, his progress score was a 6-8, while

in December 2006 it was a 5-6. (R. 526-29.) 

On January 11, 2007, Plaintiff was verbally agitated, but Ms. Stowell noted there

was no change in Plaintiff’s condition and she assigned him a progress score of 8. (R.

524-25.) On February 8, 2007, Plaintiff was assigned a progress score of 6-7 and he

was assigned a progress score of 6-8 in March 2007. (R. 1092-1095.) He continued to

show good progress from April through December of 2007. (R. 1084-91.) Although the

time between his visits to Meridian increased between August 2008 and July 2010,

Plaintiff continued to show fair to good progress during this period as well. (R. 1060-

77.) 

C. Hearing Testimony

Plaintiff testified at his October 1, 2010 administrative hearing. Plaintiff testified

he previously had worked as an electrician, in a used car lot, as a farm equipment and

supply salesman, and as a truck driver. (R. 1110-15.)

A Vocational Expert (VE”) also testified at the October 1, 2010 administrative

hearing. The VE testified Plaintiff’s past relevant work included: (i) assistant electrician,

which is a medium exertion level position; (ii) feed researching, also with a medium

exertion level; (iii) sales representative for farm and garden equipment and supplies,

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which was a light exertional level position; (iv) tractor-trailer truck driver, a medium

exertional level position; (v) used car lot porter, medium exertional level; and (vi) parts

salvager, also a medium exertional level. (R. 1112-15.) ALJ Walker also posed several

hypothetical questions to the VE. The ALJ asked the VE to assume a hypothetical

individual with the Plaintiff’s age, education and work experience who can generally lift

and carry ten pounds frequently and twenty pounds occasionally; sit for six hours and/or

stand for six hours in an eight hour workday; should avoid frequent descending of

stairs; should avoid pushing; no climbing or balancing; and occasional stooping,

crouching, kneeling and crawling. (R. 1118.) ALJ Walker then asked the VE whether

there were any unskilled occupations that such an individual could perform. The VE

responded that such an individual could perform the positions of parking lot attendant,

ticket seller, and ticket taker. (R. 1119-20.) The VE testified that each of these jobs is

low stress and non-production oriented, meaning there is little individual responsibility

or decision-making required in performing the job. The jobs only require the individual to

follow simple, one, two or three step instructions. (R. 1120.) 

ALJ Walker then further refined the occupational profile of the hypothetical

individual by posing a further hypothetical to the VE. The ALJ asked the VE to assume

an individual with the same characteristics as in the first hypothetical but to include the

additional condition that the individual has psychologically based symptoms affecting

his ability to concentrate upon complex or detailed tasks, although the individual would

still remain capable of understanding, remembering and carrying out simple job

instructions. (R. 1120-21.) ALJ Walker then asked the VE if an individual with that

profile could still perform any of the positions the VE had previously identified, even with

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this additional psychological restriction. (Id.) The VE testified that such an individual

could still perform the ticket taker and parking lot attendant positions, even with this

additional psychological limitation. (R. 1121.) The VE further testified there were

significant numbers of both the ticket taker and parking lot attendant positions in Florida

as well as in the national economy. (Id.)

D. ALJ Walker’s Findings

In his written decision dated December 1, 2010, ALJ Walker concluded that

since the alleged onset date of November 3, 1999, Plaintiff had the severe impairments

of “a pain disorder related to chronic interscapular thoracic myofascial pain; status-post

surgical removal of an arachnoid cyst; and a major depressive disorder, recurrent,

unspecified.” (R. 464.) He further determined, as of the alleged disability onset date,

Plaintiff did not have an impairment or combination of impairments that met or equaled

one of the Listings. (R. 465.) ALJ Walker further concluded Plaintiff had the RFC to

perform light work as defined in 20 CFR 404.1567(b), who could lift and

carry ten pounds frequently and twenty pounds occasionally; and can sit,

stand and walk for six hour in an eight-hour workday. However, the

claimant must avoid frequent ascending and descending stairs, pushing

and pulling motions with his lower extremities, and hazards in the

workplace. He is further limited to occasional balancing, stooping,

crouching, kneeling, and crawling, but he is unable to perform any

climbing. Additionally, the claimant is limited to low-stress work, in a nonproduction oriented job, with one, two or three step instructions. Also, due

to his psychological-based symptoms, [he] is capable of understanding,

remembering and carrying-out simple, routine and repetitive tasks. 

(R. 466.) 

ALJ Walker then determined Plaintiff had been unable to perform any of his past

relevant work since the alleged disability onset date of November 3, 1999. (R. 470.) 

Because Plaintiff turned 55 years of age on December 7, 2006 the ALJ concluded that

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Plaintiff’s age category changed to an individual of advanced age. (R. 471.)

Accordingly, relying upon the Medical-Vocational Grids the ALJ concluded that an

individual with Plaintiff’s advanced age category, education and work experience is

considered disabled because there are not jobs that exist in significant numbers in the

national economy that the Plaintiff could perform. The ALJ therefore found that Plaintiff

was disabled beginning on December 7, 2006. However, for the time period prior to

December 7, 2006, (before Plaintiff’s age category changed to advanced age) Plaintiff

was not disabled because there were jobs that existed in significant numbers in the

national economy Plaintiff could have performed. (473.) 

IV. DISCUSSION

Plaintiff argues the ALJ committed four errors in his written decision, all of which 

revolve around Plaintiff’s non-exertional impairments of pain and major depressive

disorder. The Court will discuss each alleged error in detail below.

A. ALJ Walker’s Consideration of Plaintiff’s Pain Disorder and

Depression In Combination

Plaintiff argues that ALJ Walker erred by failing to consider the severity of

Plaintiff’s non-exertional impairments of pain disorder and major depressive disorder

impairments in combination. In support of this alleged error, Plaintiff contends that “[a]

medical expert would have helped ALJ Walker fully and fairly develop the record.” 

(Doc. 19 at 14.)

Where a claimant alleges more than one impairment, the Commissioner has a

duty to consider the cumulative effects of the impairments in making the determination

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as to whether the claimant is disabled. Under the law in the Eleventh Circuit this 23

burden is met where the ALJ expressly states he has considered all of the medical

evidence and concludes Plaintiff is not suffering from “an impairment, or a combination

of impairments listed in Appendix 1, Subpart P.” In the instant case ALJ Walker did 24

just that. ALJ Walker expressly concluded that: “The [Plaintiff] 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.” (R. 465.) Moreover,

in determining whether the Plaintiff met a listing at Step Three of the sequential

evaluation process ALJ Walker expressly stated that “Despite the claimant’s combined

impairments ...,” Plaintiff’s medical evidence did not meet any listing level impairment. 

(Id.) ALJ Walker also carefully reviewed the requirements for each mental impairment

included in the Listings and concluded Plaintiff’s mental impairments did not meet the

requirements of any of those Listings. (R. 465-66.)

Moreover, in discussing the medical evidence as part of the evaluation of

Plaintiff’s RFC, ALJ Walker expressly advised that he had given “careful consideration

of the entire record” including consideration of “all symptoms and the extent to which

these symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence.” (R. 466.) This language evidences that ALJ Walker

properly considered Plaintiff’s impairments in combination as part of the sequential

evaluation process. 

The Court, therefore, concludes that ALJ Walker properly considered and

Jones v. Dep’t of Health & Hum. Servs., 941 F.2d 1529, 1533 (11th Cir. 1991).

23

Id.

24

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discussed in his written decision all of Plaintiff’s impairments in combination, including

Plaintiff’s depressive disorder and pain disorder. 

B. ALJ Walker’s Application of the Treating Physician Rule to the 

Opinions of Plaintiff’s Treating Physicians

Plaintiff also contends ALJ Walker erred in addressing the medical opinions

expressed by Plaintiff’s treating physicians Drs. Springer and Stevenson as it relates to

Plaintiff’s pain and depression. This contention has no merit.

It is well-established that substantial or considerable weight must be given to the 

opinion, diagnosis and medical evidence of a treating physician unless “good cause” is 

shown to the contrary. If a treating physician's opinion on the nature and severity of a 25

claimant's impairments is well-supported by medically acceptable clinical and laboratory 

diagnostic techniques, and is not inconsistent with the other substantial evidence in the 

record, the ALJ must give it controlling weight. 

26

The ALJ may discount a treating physician's opinion or report regarding an

inability to work if it is unsupported by objective medical evidence or is wholly

conclusory. Where a treating physician has merely made conclusory statements, the

27

ALJ may afford them such weight as is supported by clinical or laboratory findings and

Crawford v. Commissioner of Social Security, 363 F. 3d 1155, 1159 (11 Cir. 2004) (citing

25 th

Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997)) (“W e have found ‘good cause’ to exist where the

doctor’s opinion was not bolstered by the evidence, or where the evidence supported a contrary finding.

W e have also found good cause where the doctors’ opinions were conclusory or inconsistent with their

medical records.”). See also Edwards v. Sullivan, 937 F.2d 580, 583-584 (11 Cir. 1991); Sabo v.

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Commissioner of Social Security, 955 F. Supp. 1456, 1462 (M.D. Fla.1996); 20 C.F.R. § 404.1527(d).

20 C.F.R. § 404.1527(d)(2).

26

Edwards, 937 F.2d at 584 (ALJ properly discounted treating physician's report where the

27

physician was unsure of the accuracy of his findings and statements).

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other consistent evidence of a claimant's impairments. 

28

The Court will consider in turn ALJ Walker’s handling of the opinions of Dr. Philip

Springer and Dr. John Stevenson.

1. Dr. Springer’s Opinion

Plaintiff contends ALJ Walker erred in his treatment of the opinions expressed by

Dr. Springer in the Mental Residual Functional Capacity Assessment Form (the “mental

RFC form”). 

In this case, ALJ Walker specifically noted the following with respect to Dr.

Springer’s opinion as expressed in the mental RFC form:

Similarly, the undersigned gives little weight to the Mental Residual

Functional Capacity Assessment, completed by Dr. Phillip K. Springer (Ex.

17F/CR410), because beyond the check marks placed on a form devised

by the representative, it is not supported by any adequate explanations

and/or any objective clinical signs, diagnostic studies or laboratory

findings. Furthermore, Dr. Springer’s restrictions are so extreme as to

require an explanation; yet, he utterly failed to provide any reasoning. 

Therefore, while the undersigned assigns some weight to the notes from

the claimant’s evaluations (Ex. 14F), substantial weight is not accorded to

the checklist.

(R. 470.)

ALJ Walker did not err in his treatment of Dr. Springer’s conclusions expressed

on the mental RFC form. ALJ Walker specifically noted that he gave little weight to the

conclusions expressed on the form because the findings were simply checks on a form

that were not supported by adequate explanation, objective clinical signs, diagnostic

studies or laboratory findings. An ALJ may determine that the opinion of a treating

Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.1986); see also Schnorr v. Bowen, 816

28

F.2d 578, 582 (11th Cir.1987).

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physician expressed on a “check-off” form should be given less than controlling weight

where the opinion is conclusory and not supported by explanations in the progress

notes or not supported by objective clinical signs or any diagnostic tests. Teague v.

Astrue, 638 F.3d 611, 615 (8 Cir. 2011)(“Given that the ‘check-off form’ did not cite th

any clinical test results or findings and Dr. Lowder's previous treatment notes did not

report any significant limitations due to back pain, the ALJ found that the MSS was

entitled to ‘little evidentiary weight.’”); Dixon v. Astrue, No. 5:09-cv-320-RS-EMT, 2010

WL 4942141, at *14-*15 (N.D. Fla. Oct. 26. 2010)(ALJ properly rejected opinions

expressed by treating physician on “check-off” type forms where the treating physician’s

own treatment notes did not support the opinions expressed on those forms). 

Furthermore, ALJ Walker’s treatment of Dr. Springer’s opinion as expressed in

the mental RFC form was appropriate because the boxes checked by Dr. Springer on

the form were substantially at odds with Dr. Springer’s own progress notes. Despite the

severity of the limitations expressed on the mental RFC form, Dr. Springer noted in the

progress notes for almost every one of Plaintiff’s visits that Plaintiff was either showing

progress or that Plaintiff “sees himself as mentally less healthy than I [Dr. Springer] do.” 

(R. 372-405.) Indeed, on Plaintiff’s last visit to Dr. Springer on December 19, 2002, the

progress notes reflect that Plaintiff’s “[m]ental health is in a state of relative balance”

and Plaintiff’s “overall mental health shows major improvement compared to previous

reports.” (R. 372-73.) Accordingly, the Court concludes that ALJ Walker’s rejection of

Dr. Springer’s opinion was completely consistent with Dr. Springer’s own medical

records.

ALJ Walker’s treatment of the opinion expressed by Dr Springer in the mental

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RFC form is also supported by other evidence in the record, specifically Plaintiff’s

records from his treatment at Meridian. Plaintiff was diagnosed with a major depressive

disorder, recurrent, moderate during his treatment at Meridian, but during the nearly five

years he was treated at Meridian Plaintiff showed consistent progress for the most part. 

His progress scores on a scale of 1 (poor) to 10 (good) during this period were

consistently as high as an 8 or a 9. (R. 530-31, 534-35, 546-47.) ARNP Patricia

Stowell remarked in the progress notes that Plaintiff’s progress was “Good” or that

Plaintiff self-reported doing better and having fewer bad days or else reported he

experienced improved and more stable moods on multiple occasions. (R. 532-33, 536-

37, 1005-06.) In addition, as ALJ Walker specifically noted, although Plaintiff

presented to Meridian with a depressed mood and sad affect, his thought process was

coherent and relevant, he displayed no suicidal or homicidal ideations and Plaintiff’s

insight and judgment were both fair on most of his visits to Meridian. (R. 469-70.) 

Accordingly, the Court concludes that ALJ Walker did not err in discounting the

conclusions expressed by Dr. Springer in the mental RFC form.

2. Dr. Stevenson’s Opinion

Plaintiff also contends the ALJ ignored Dr. Stevenson’s treating physician

opinion. This contention is somewhat confusing, as Plaintiff does not specifically state

which of Dr. Stevenson’s conclusions were not properly addressed by ALJ Walker. 

Dr. Stevenson opined that Plaintiff could not squat, walk on his toes, or walk on

his heels. (R. 210.) As part of his RFC determination, ALJ Walker specifically reviewed

Dr. Stevenson’s findings and concluded Plaintiff had the RFC to perform light work,

except Plaintiff was to avoid frequent ascending and descending of stairs and pushing

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Case 1:11-cv-00026-MP-GRJ Document 21 Filed 02/14/12 Page 19 of 24
and pulling with his lower extremities. (R. 466, 468.) As ALJ Walker concluded this

RFC determination was “supported by the progress report notes from .... Dr. John

Stevenson.” (R. 470.) 

Accordingly, because ALJ Walker specifically included a restriction in Plaintiff’s

RFC that was consistent with the opinion of Dr. Stevenson there was no error. 

C. ALJ Walker’s Determination of Plaintiff’s Mental RFC

Plaintiff also contends ALJ Walker failed to properly determine his mental

RFC. This contention is also without merit.

ALJ Walker concluded Plaintiff had the RFC to:

perform light work as defined in 20 CFR 404.1567(b), who could lift and

carry ten pounds frequently and twenty pounds occasionally; and can sit,

stand and walk for six hour in an eight-hour workday. However, the

claimant must avoid frequent ascending and descending stairs, pushing

and pulling motions with his lower extremities, and hazards in the

workplace. He is further limited to occasional balancing, stooping,

crouching, kneeling, and crawling, but he is unable to perform any

climbing. 

(R. 466.) 

Notably, ALJ Walker also determined Plaintiff was “limited to low-stress work, in

a non-production oriented job, with one, two or three step instructions.” This limitation

was included “due to Plaintiff’s psychological-based symptoms.” The ALJ properly

accounted for these symptoms by noting that Plaintiff is “capable of understanding,

remembering and carrying-out simple, routine and repetitive tasks.” (R. 466.) 

In determining Plaintiff’s RFC, ALJ Walker summarized all of the relevant

medical evidence relating to Plaintiff’s depression and pain disorder. (R. 466-70.) He

extensively reviewed Plaintiff’s records from his treatment with Dr. Phillip Springer as

well as the records from Plaintiff’s visits to Meridian. (R. 469-70.) 

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ALJ Walker’s conclusion with respect to Plaintiff’s mental RFC was supported by

substantial evidence in the record. As previously discussed, while the progress notes

from Plaintiff’s visits to Dr. Springer reflect occasional self reported complaints by

Plaintiff that he was feeling worse, the progress notes are littered with Dr. Springer’s

opinions that Plaintiff was experiencing improvement and that Plaintiff’s mental health

was better than Plaintiff believed it to be. 

The progress notes from Meridian also support ALJ Walker’s conclusion with

respect to Plaintiff’s mental RFC. Plaintiff was diagnosed with a major depressive

disorder, recurrent, moderate during his treatment at Meridian, but during the nearly five

years he was treated at Meridian Plaintiff showed consistent progress for the most part. 

His progress scores on a scale of 1 (poor) to 10 (good) during this period were

consistently as high as an 8 or a 9. (R. 530-31, 534-35, 546-47.) ARNP Patricia

Stowell remarked in the progress notes that Plaintiff’s progress was “Good” or that

Plaintiff self-reported doing better and having fewer bad days or else reported he

experienced improved and more stable moods on multiple occasions. (R. 532-33, 536-

37, 1005-06.) In addition, as ALJ Walker specifically discussed, while Plaintiff

presented to Meridian with a depressed mood and sad affect, his thought process was

coherent and relevant, he displayed no suicidal or homicidal ideations and Plaintiff’s

insight and judgment were both fair on most of his visits to Meridian. (R. 469-70.)

In sum, ALJ Walker’s finding of Plaintiff’s mental RFC was supported by

substantial medical evidence in the record, specifically the progress notes from

Plaintiff’s treatment with treating psychiatrist Dr. Philip Springer as well as Plaintiff’s

visits to Meridian Behavioral Healthcare. Accordingly, the Court concludes that ALJ

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Walker did not err in his evaluation of Plaintiff’s mental RFC.

D. ALJ Walker’s Hypothetical Question To The VE

Plaintiff also contends ALJ Walker erred in the hypothetical question he posed to

the VE at Plaintiff’s administrative hearing. This fourth and final error is also without

merit.

The ALJ is required to describe Plaintiff’s educational level, age, work skills,

experience, and all of Plaintiff’s impairments when presenting a hypothetical question to

a VE. The Social Security Administration’s regulations do not obligate an ALJ to use 29

specific wording when describing Plaintiff’s impairments in these hypotheticals so long

as the question accurately reflects the claimant’s RFC. In order for a response to a

hypothetical question to constitute substantial evidence of work available to the

claimant, the question must set out all of the claimant’s impairments. However, in 30

posing a hypothetical question, the ALJ is not required to include findings the ALJ

properly rejects, nor must he accept the VE’s responses to hypothetical questions that

include unsupported allegations. 

31

In this instance, ALJ Walker asked the VE to assume a hypothetical individual

with the Plaintiff’s age, education and work experience who can generally lift and carry

ten pounds frequently and twenty pounds occasionally; sit for six hours and/or stand for

six hours in an eight hour workday; should avoid frequent descending of stairs; no

climbing or balancing; and occasional stooping, crouching, kneeling and crawling. (R.

Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999).

29

W ilson v. Barnhart, 284 F3d.1219, 1227 (11 Cir. 2002).

30 th

Wright v. Comm’r of Soc. Sec., 327 Fed. Appx. 135, 137 (11 Cir. 2009).

31 th

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1118.) ALJ Walker then asked the VE whether there were any unskilled occupations

that an individual could perform with these characteristics. The VE responded that such

an individual could perform the positions of parking lot attendant, ticket seller, and ticket

taker. (R. 1119-20.) The VE testified that each of these jobs is low stress, nonproduction oriented, meaning there is little individual responsibility or decision-making

required in performing the job and the jobs only require simple one, two or three step

instructions. (R. 1120.) 

ALJ Walker then further refined the occupational profile of the hypothetical

individual by stating the hypothetical individual has psychologically based symptoms

affecting his ability to concentrate upon complex or detailed tasks, but the individual

would remain capable of understanding, remembering and carrying out simple job

instructions. (R. 1120-21.) ALJ Walker then asked the VE if the hypothetical individual

with this additional limitation would be able to perform any of the jobs the VE had just

identified. The VE testified the hypothetical individual could still perform the ticket taker

and parking lot attendant positions, even with this additional psychological limitation.

(R. 1121.) The VE further testified there were significant numbers of both positions in

Florida as well as in the national economy. (Id.)

The limitations included by ALJ Walker in the hypothetical question to the VE

were consistent with the Plaintiff’s RFC as set forth in ALJ Walker’s written decision. 

Plaintiff contends ALJ Walker should have included the limitations set forth in Dr.

Springer’s mental RFC form in the hypothetical question. As discussed above the ALJ

properly discounted these findings because they were not supported by Dr. Springer’s

own progress notes and were not supported by any testing or diagnostic findings. 

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Case 1:11-cv-00026-MP-GRJ Document 21 Filed 02/14/12 Page 23 of 24
Moreover, ALJ Walker did include a psychological restriction in the hypothetical

question he posed to the VE. The ALJ expressly included in the second hypothetical

the additional limitation of an individual who has psychologically based symptoms

affecting his ability to concentrate upon complex or detailed tasks, although the

individual would remain capable of understanding, remembering and carrying out

simple job instructions. (R. 1120-21.) The VE testified that an individual with these

additional psychological symptoms could still perform at least two of the jobs identified

by the VE as existing in significant numbers in the national economy.

Accordingly, for these reasons, the Court concludes that there was no error by

the ALJ in the hypothetical posed to the VE. 

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 February 14, 2012.

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.

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