Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PATRICIA ANN MAYNOR,

Plaintiff,

vs. Case No. 3:11cv109/WS/EMT

MICHAEL J. ASTRUE,

Commissioner of the Social Security Administration,

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 Local Rules 72.1(A), 72.2(D) and 72.3 of this court relating to review of

administrative determinations under the Social Security Act (“Act”) and related statutes, 42 U.S.C.

§ 401, et seq. It is now before the court pursuant to 42 U.S.C. § 405(g) of the Act for review of a

final determination of the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s

application for disability insurance benefits (“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34,

and for Supplemental Security Income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C.

§§ 1381–83.

Upon review of the record before this court, it is the opinion of the undersigned that the

findings of fact and determinations of the Commissioner are not supported by substantial evidence;

thus, the decision of the Commissioner should be reversed and remanded.

I. PROCEDURAL HISTORY

On October 26, 2006, Plaintiff filed applications for DIB and SSI, and in both applications

she alleged disability beginning October 1, 2005 (Tr. 10).1

 Her applications were denied initially

1 All references to “Tr.” refer to the transcript of Social Security Administration record filed on May 31, 2011

(Doc. 14). Moreover, the page numbers refer to those found on the lower right-hand corner of each page of the

transcript, as opposed to those assigned by the court’s electronic docketing system.

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 1 of 10
Page 2 of 10

and on reconsideration, and thereafter Plaintiff requested a hearing before an administrative law

judge (“ALJ”). A hearing was held on May 16, 2009, and on April 14, 2010, the ALJ issued a

decision in which he found Plaintiff “not disabled,” as defined under the Act, at any time through

the date of his decision (Tr. 11–16). On December 29, 2010, the Appeals Council denied Plaintiff’s

request for review (Tr. 1). Thus, the decision of the ALJ stands as the final decision of the

Commissioner, subject to review in this court. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d

1253, 1262 (11th Cir. 2007). This appeal followed.

II. FINDINGS OF THE ALJ 

On April 14, 2009, the ALJ made several findings relative to the issues raised in this appeal

(Tr. 10–16):

1) Plaintiff meets the insured status requirements of the Act, for DIB purposes, through

December 31, 2011.

2) Plaintiff has not engaged in substantial gainful activity since October 1, 2005, the

date she alleges she became disabled.

3) Plaintiff’s severe impairments include back pain, ankle pain, and arthritis, but no

impairment—alone or in combination—meets or equals one of the listed impairments

in 20 C.F.R. Part 404, Subpart P, Appendix 1.

4) Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work, as

follows: during an eight-hour workday she can sit six hours and stand/walk four to

six hours, but she must be able to alternate between sitting and standing; she can lift

or carry ten pounds frequently; she has no manipulative, environmental or visual

limitations; and, even considering her marginal education, she is able to read and

write to the extent she can understand, remember and carry out very short, simple

instructions (i.e., perform unskilled work).

5) Although Plaintiff cannot perform her past relevant work as a restaurant cashier or

stocker, since that work requires the performance of work-related activities that are

precluded by her RFC, she is able to perform a wide range of sedentary work which

exists in significant numbers in the national economy; Plaintiff, therefore, is “not

disabled,” as defined under the Act, from October 1, 2005, through April 14, 2009,

the date of the ALJ’s decision.

III. 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

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 2 of 10
Page 3 of 10

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

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

substantial evidence or that proper legal standards were not applied.”); see also Lewis v. Callahan,

125 F.3d 1436, 1439 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A

determination that is supported by substantial evidence may be meaningless . . . if it is coupled with

or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),

superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214

(11th Cir. 1991). As long as proper legal standards were applied, the Commissioner’s decision will

not be disturbed if in light of the record as a whole the decision appears to be supported by

substantial evidence. 42 U.S.C. § 405(g); Falge, 150 F.3d at 1322; Lewis, 125 F.3d at 1439; Foote

v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a scintilla, but

not a preponderance; it is “such relevant evidence as a reasonable person would accept as adequate

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.

2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L.

Ed. 126 (1938)); Lewis, 125 F.3d at 1439. The court may not decide the facts anew, reweigh the 

evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d

1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates against the

Commissioner’s decision, the decision must be affirmed if supported by substantial evidence. 

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

The 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 claimant 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)(2)(A).

Pursuant to 20 C.F.R. § 404.1520(a)–(g), the Commissioner analyzes a disability claim in

five steps: 

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 3 of 10
Page 4 of 10

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 from doing her past relevant 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

RFC and vocational factors, she is not disabled.

The claimant bears the burden of establishing a severe impairment that keeps her from

performing her past work. 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. MacGregor v. Bowen,

786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must

then prove she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d

1007, 1011 (11th Cir. 1987).

IV. PLAINTIFF’S PERSONAL, EMPLOYMENT AND MEDICAL HISTORY

A. Personal History

Plaintiff was born on September 18, 1968, and thus was thirty-eight years of age on the date

she alleges she became disabled (Tr. 27). She testified that she completed the sixth grade, but she

could not remember if she was in special education classes (Tr. 28). She also stated she can read

and write “some,” but she has never had a driver’s license and has never learned to drive (Tr. 14). 

She noted she was able to read the letter advising of her hearing before the ALJ, and she can

“sometimes” read the newspaper (Tr. 14). She has previous work experience in a restaurant as a

cashier, cleaner, and stocker, and she last worked on November 1, 2006 (Tr. 12).

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 4 of 10
Page 5 of 10

B. Relevant Medical History2

On May 19, 2005, Plaintiff presented to Ida Trasmonte, M.D., with complaints of daily back

pain resulting from a motor vehicle accident in October 2004. A lumbar magnetic resonance

imaging scan (“MRI”) showed minimal desiccation at L4-L5 with small bulging but no evidence

of disc herniation. The physician referred to thoracic and lumbar spine x-rays taken in October 2004

and noted they were normal except for minimal scoliosis and small osteophytes. On July 10, 2006,

Plaintiff was seen at Baptist Hospital for back pain, at which time it was noted that she was working

full time at a fast food restaurant. Plaintiff was treated conservatively and discharged with

prescriptions for Lortab and Flexeril. On March 28, 2006, Plaintiff was evaluated at Baptist

Hospital for ankle pain. X-rays showed no evidence of fracture or dislocation, although advanced

degenerative joint disease (“DJD”) was noted. On July 9, 2007, Plaintiff presented to Earl

Crosswright, M.D., a family practitioner, with complaints of low back pain and left ankle pain (see

Tr. 353–54). Dr. Crosswright noted that Plaintiff had problems with her back and ankle for “many

years,” but she had never received regular medical care for her symptoms (Tr. 353). He also noted

that Plaintiff reported taking over-the-counter medications for pain, such as Advil, Tylenol, and

Motrin (Tr. 353). Dr. Crosswright assessed chronic low back pain, left ankle DJD, hypertension,

and obesity (Tr. 354). He prescribed Naprosyn and Darvocet and referred Plaintiff to physical

therapy for her back and/or ankle pain, and he recommended weight loss, dietary changes, and

exercises such as water aerobics for her obesity (id.). Finally, Dr. Crosswright advised Plaintiff to

return in four weeks for follow-up (id.). 

V. DISCUSSION

Plaintiff raises two issues in this appeal. First, Plaintiff contends the ALJ erred at step five

of the sequential evaluation in finding that sedentary work exists in significant numbers in the

national economy that she can perform (Doc. 16 at 6). Second, Plaintiff asserts the “ALJ committed

reversible error by ignoring [her] obesity” (id.). 

A. ALJ’s Findings at Step Five

2 Unless otherwise indicated, the information in this section is derived from the opinion of the ALJ (see Tr. 13).

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 5 of 10
Page 6 of 10

At step four of the sequential evaluation, the ALJ determined that Plaintiff could not return

to her past relevant work. The ALJ thus proceeded to step five, where he found Plaintiff “not

disabled” because she can perform “at least sedentary work found to exist in significant numbers

in the national economy and in the regional economy” (Tr. 16). Plaintiff contends the ALJ erred at

step five because he failed to articulate the specific jobs she can perform (Doc. 16 at 7). Plaintiff

also contends the ALJ erred in failing to solicit testimony from a vocational expert (“VE”) regarding

available jobs. More specifically, Plaintiff asserts that because she has pain, a non-exertional

impairment, and because she is limited to unskilled work, she cannot perform a full range of

sedentary work, and the ALJ was required to obtain testimony from a VE (id. at 7–10). In response

to Plaintiff’s contentions, the Commissioner first notes, “While the ALJ did not specifically cite the

applicable medical-vocational rule(s), he presumably utilized the medical-vocational guidelines

[“the grids”] to meet the Commissioner’s burden in this case.” (Doc. 17 at 8) (emphasis added). The

Commissioner then asserts that based on Plaintiff’s age, past work experience, and education, the

grids (or more specifically, grid rules “201.18 through 201.20”) direct a finding of not disabled (id.).

Once a claimant proves she can no longer perform her past relevant work, “the burden shifts

to the Commissioner to show the existence of other jobs in the national economy which, given the

claimant’s impairments, the claimant can perform.” Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.

1999). One way for the Commissioner to carry this burden is through an application of the grids. 

See 20 C.F.R. Part 404, Subpart P, Appendix 2. 

The grids are a series of matrices which correlate a set of variables—the claimant’s

residual functional capacity (i.e., the ability, despite impairments, to do sedentary,

light, etc. work), age, educational background, and previous work experience

[including whether the previous work was skilled or unskilled]. Upon the entry of

a set of these variables into the appropriate matrix a finding of disabled or not

disabled is rendered.

 Gibson v. Heckler, 762 F.2d 1516, 1520 (11th Cir. 1985).

In determining whether exclusive reliance on the grids is appropriate, the ALJ must first

categorize the claimant’s impairments as either exertional or nonexertional. See, e.g., Phillips v.

Barnhart, 357 F.3d 1232, 1241–43 (11th Cir. 2004). Exertional impairments affect an individual’s

ability to meet the seven strength demands of the job: sitting, standing, walking, lifting, carrying,

pushing, and pulling. Id. at 1241 n.11. Nonexertional impairments affect an individual’s ability to

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 6 of 10
Page 7 of 10

meet other work-related demands and include limitations such as pain, medication side effects, and

depression. Id.; MacGregor, 786 F.2d at 1054. An ALJ may rely exclusively on the grids when

each factor used in the determination describes the claimant’s situation, and when the case involves

only exertional impairments. Foote, 67 F.3d at 1559. In contrast, if the claimant has a nonexertional

impairment that limits a wide range of work at a given level, an ALJ is required to consult a VE. 

Id.

Here, the ALJ did not state he was applying the grids or indicate which rule or rules within

the grids he relied upon in finding Plaintiff “not disabled.” Thus, in order to uphold the

Commissioner’s final decision, this court would first have to “presume” that the ALJ applied the

grids in this case, as the Commissioner urges. The court would then have to presume that the ALJ

applied the correct rule or rules within the grids. And finally, the court would have to presume that

application of the correct rule or rules indeed compels a finding that Plaintiff is not disabled.3

 This

court cannot rely on such presumptions to affirm the decision of the ALJ.

It matters not whether evidence exists in the record to support the ALJ’s ultimate findings,

as the Commissioner’s suggests; the question is whether the ALJ’s decision reflects an accurate and

logical bridge between the evidence and the result. It does not in this case. See Green v. Shalala,

51 F.3d 96, 101 (7th Cir. 1995) (to permit an informed review, ALJ must articulate his analysis of

the evidence); Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (same); Zblewski v. Schweiker,

732 F.2d 75, 78–79 (7th Cir. 1984) (“While there may be strong grounds upon which the ALJ

rejected claimant’s evidence in this case, as the district judge presumed, we cannot say on the basis

of the record that such a conclusion is self-evident.”) (emphasis added); Social Security Ruling

(“SSR”) 82-62 (eff. Aug. 20, 1980) (“The rationale for a disability decision must be written so that

a clear picture of the case can be obtained. The rationale must follow an orderly pattern and show

clearly how specific evidence leads to a conclusion.”). 

3 The Commissioner posits that “Rules 201.18 through 201.20,” found within 20 C.F.R. Part 404, Subpart P,

Appendix 2, direct a finding of not disabled, and therefore the ALJ’s decision should be affirmed (see Doc. 17 at 8). 

The Commissioner’s position, however, is unavailing. As previously noted, the ALJ not only failed to indicate that he

applied the grids, he also failed to indicate the specific rule or rules within the grids that he relied upon in finding

Plaintiff not disabled. Thus, this court cannot determine whether the ALJ considered the appropriate variables or factors

(i.e., those that accurately describe Plaintiff).

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 7 of 10
Page 8 of 10

Compounding the error at step five is the ALJ’s finding at step two that Plaintiff suffers from

severe back pain and severe ankle pain, as those conditions may preclude exclusive reliance on the

grids. As previously noted, an ALJ may not rely exclusively on the grids when a case involves

nonexertional impairments, such as pain. Foote, 67 F.3d at 1559. Moreover, it is unclear in this

case whether the grids adequately account for the limitation in Plaintiff’s RFC to “unskilled work”

(and/or, as the ALJ stated, work in which Plaintiff must “understand, remember, and carry out very

short, simple instructions” (see Tr. 13)), due to her limited education and poor literacy skills. Thus,

the undersigned cannot confidently conclude that use of the grids is (or was) proper in the instant

case. See Walker v. Bowen, 826 F.2d 996, 1002–03 (11th Cir. 1987) (exclusive reliance on the grids

is not appropriate “either when a claimant is unable to perform a full range of work at a given

residual functional level or when a claimant has a non-exertional impairment that significantly limits

basic work skills”).

In Social Security cases, the role of this court is to determine whether the law has been

properly applied and whether substantial evidence supports the Commissioner’s findings, not to find

facts. Because of this limited role, the general rule is to reverse and remand for additional

proceedings when errors occur. See, e.g., Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993)

(referring to general practice); Foote, 67 F.3d at 1562 (stating that an insufficient credibility finding

is “a ground for remand when credibility is critical to the outcome of the case”); Salter v. Astrue,

Case No. 3:08cv189/RV/EMT (N.D. Fla. May 22, 2009 (Doc. 15)) (same). A case may be remanded

for an award of disability benefits, however, where the Commissioner has already considered the

essential evidence and it is clear that the cumulative effect of the evidence establishes disability

without any doubt. Davis, 985 F.2d at 534; see also Bowen v. Heckler, 748 F.2d 629, 636 (11th Cir.

1984) (if the Commissioner’s decision is in clear disregard of the overwhelming weight of the

evidence, Congress has empowered the courts to modify or reverse the decision with or without

remanding the case for a rehearing); Carnes v. Sullivan, 936 F.2d at1219 (“The record . . . is fully

developed and there is no need to remand for additional evidence.”).

Here, the evidence does not establish disability without a doubt; thus, a remand for further

administrative proceedings is the appropriate remedy for the ALJ’s error at step five. Upon remand,

the ALJ should determine whether exclusive reliance on the grids is appropriate in light of the

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 8 of 10
Page 9 of 10

severity of Plaintiff’s back and ankle pain, as well as her limited education and literacy skills. If so,

the ALJ should clearly explain the determination; if not, the ALJ should solicit testimony from a VE.

B. Plaintiff’s Obesity

Plaintiff contends the record documents her obesity, and the ALJ erred by “ignoring” it and

by failing to comply with SSR 02-1p (see Doc. 16 at 11–13). She also contends her obesity should

have been deemed a severe impairment at step two and, apparently, that it should have factored into

the RFC determination and/or precluded exclusive reliance on the grids (id.). In support, Plaintiff

points to Dr. Crosswright’s one-time assessment/diagnosis of obesity, as well as testimony and other

evidence in the record that documents her height and weight (e.g., in December 2006 and July 2007,

a consultative examiner recorded her height at five feet, two inches, and her weight at 206 pounds

and 215 pounds, respectively; in March 2009 she testified she weighed 220 pounds) (id. at 11). 

Moreover, Plaintiff contends, the evidence as to her height and weight corresponds to a body mass

index (“BMI”) that evidences obesity (id.). Plaintiff’s contentions, however, are unpersuasive.

Initially, the ALJ did not ignore Plaintiff’s weight, as she contends (see Tr. 15). The ALJ

noted that Plaintiff testified she weighed 220 pounds, was only five feet and two inches tall, and was

unaware of the reasons for her weight gain (Tr. 15, 30–31). The ALJ also stated that after

considering Plaintiff’s weight, he concluded “that the impairment is not severe in that no treating

or examining physician has assigned any limitations based upon the claimant’s obesity” (Tr. 15). 

Plaintiff has pointed to no evidence that contradicts the ALJ’s finding.4

 Although Dr. Crosswright

diagnosed obesity on one occasion, he did not impose any resulting functional limitations; to the

contrary, he suggested that Plaintiff participate in physical therapy and exercises such as water

aerobics. Moreover, his diagnosis of obesity is alone insufficient to establish severity at step two. 

See, e.g., Salles v. Comm’r. of Social Security, 229 Fed. Appx. 140, 145 (3d Cir. 2007). Likewise,

Plaintiff’s height and weight, as documented in the record, fail to establish a severe impairment. 

SSR 02-1p (eff. Sept. 12, 2002) specifically states that there is “no specific level of weight or BMI

that equates with a ‘severe or a ‘not severe’ impairment.” As with any other impairment, the

Commissioner “will find that obesity is a ‘severe’ impairment when, alone or in combination with

4 In this court’s scheduling order, issued June 6, 2011, Plaintiff was specifically warned that, “Failure by either

party to support factual contentions with accurate, precise citations to the record will result in the contention(s) being

disregarded for lack of proper development.” (Doc. 15 at 2) (emphasis in original).

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 9 of 10
Page 10 of 10

another medically determinable physical or mental impairment(s), it significantly limits an

individual’s physical or mental ability to do basic work activities.” Id. Plaintiff has pointed to no

evidence of obesity-related limitations in the file, and the court is aware of none. Plaintiff merely

recites general information regarding limitations that obesity may cause in some individuals, but she

has not shown that she personally suffers the same limitations or that her weight significantly limits

her ability to perform basic work activities (see Doc. 16 at 13 (citing SSR 02-1p, which notes

potential limitations that may result from obesity)). Thus, Plaintiff is not entitled to relief on this

claim.

VI. CONCLUSION

For the reasons discussed in Section V.A. of this Report, the undersigned concludes that the

Commissioner’s decision is not supported by substantial evidence and should not be affirmed. See

42 U.S.C. § 405(g); Foote, 67 F.3d at1556 (remanding for additional administrative proceedings). 

Accordingly, it is respectfully RECOMMENDED, pursuant to sentence four of 42 U.S.C.

§ 405(g), that the decision of the Commissioner be REVERSED, that the Commissioner be ordered

to remand this case to the Administrative Law Judge for further proceedings consistent with this

Report and Recommendation, and that the Clerk be directed to close the file.

At Pensacola, Florida this 14th day of February 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed recommendations must be filed within fourteen (14)

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).

Case No. 3:11cv109/WS/EMT

Case 3:11-cv-00109-WS-EMT Document 19 Filed 02/14/12 Page 10 of 10