IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

THOMAS M. MORIGGI,

Plaintiff,

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

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

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

Security (the “Commissioner”) denying his applications for a period of disability and

disability insurance benefits and for Supplemental Security Income benefits. (Doc. 1.) 

The Commissioner has answered (Doc. 9), and both parties have filed briefs outlining

their respective positions. (Docs. 14 and 16.) For the reasons discussed below, the

Commissioner’s decision is due to be AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff protectively filed applications for disability insurance benefits under Title

II of the Social Security Act (the “Act”) and for Supplemental Security Income benefits

under Title XVI of the Act on November 27, 2007 alleging a disability onset date of

September 15, 2003. (R. 142-47.) Plaintiff’s applications were denied initially and upon

reconsideration. (R. 80-85, 89-92.) Plaintiff then filed a timely request for an

administrative hearing on October 26, 2008. (R. 94-95.) A video hearing was held

before an Administrative Law Judge (“ALJ”) on April 6, 2010 and the ALJ issued a

Case 1:11-cv-00011-MP-GRJ Document 17 Filed 01/13/12 Page 1 of 17
written decision dated April 19, 2010 denying Plaintiff’s applications. (R. 8-69.) Plaintiff

then appealed this decision to the Appeals Council on May 13, 2010, which denied

Plaintiff’s request for review on December 22, 2010. (R. 1-3, 7.) Plaintiff then filed his

Complaint in this case on January 19, 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

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(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).

2

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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 her 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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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 December 6, 1961, was 41 years old as of the date of his

administrative hearing. (R. 17.) Plaintiff has past relevant work as an apartment

maintenance worker and a plumber. (R. 63.)

B. Evidence Considered By the ALJ

The evidence considered by the ALJ consisted primarily of Plaintiff’s records

from his visits to the Emergency Room at several hospitals in the Gainesville, Florida

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

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

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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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area, his visits to his treating physicians and the reports completed by several

consulting physicians and several non-examining state agency physicians. The Court

will focus its discussion of the record on Plaintiff’s lower back pain and left arm issues,

as those are most relevant to the issues before the Court in this case.

On September 24, 2003, Plaintiff reported to the Emergency Room (“ER”) at

Shands at AGH Hospital in Gainesville, Florida complaining of pain in his lower back

and right elbow. (R. 317-19.) He was diagnosed with a muscle strain in his lumbar

region and exam showed that his “back pain [wa]s most likely caused by a strain of the

muscles or ligaments that support the spine.” (R. 320-24.)

On July 26, 2004 Plaintiff reported back to the ER at Shands at AGH Hospital,

again complaining of lower back pain. (R. 310-16.) Upon examination, Plaintiff

exhibited some lumbrosacral tenderness and exam again showed his “back pain [wa]s

most likely caused by a strain of the muscles or ligaments that support the spine.” (R.

311, 314.) He was diagnosed with a herniated disc and back pain, was prescribed

Lortab and was released. (Id.)

Plaintiff treated with Dr. Christopher Leber, M.D. of Rehabilitation Medicine

Associates in Gainesville, Florida for his lower back pain between December 2004 and

March 2006. On Plaintiff’s initial visit to Dr. Lieber on December 27, 2004, Plaintiff was

unable to abduct his left humerus and had severe atrophy of his left biceps and triceps

musculature, but he was able to pronate and suprinate his left upper extremity. (R.

278.) Plaintiff also had decreased range of motion in his lumbar spine, but no

tenderness in his cervical, thoracic or lumbar musculature, and was able to ambulate

independently with a stiff but steady gait. (R. 277-78.)

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A CT scan of Plaintiff’s lumbar spine on March 25, 2005 reflected mild diffuse

disk bulging and mild stenosis at L4-L5 and annular disk bulging with a small to

moderate sized disk protrusion, moderate stenosis, and moderate to advanced bilateral

neural foraminal narrowing at L5-S1. (R. 260-63.) On an April 14, 2005 visit to Dr.

Leber, Plaintiff exhibited functional range of motion of the cervical and thoracic spine

without any tenderness in the cervical, thoracic or lumbar musculature. (R. 272-73.) 

On November 7, 2005 Plaintiff reported having recently returned from a trip to

Maine, where he had traveled in order to help his brother recover from a motorcycle

accident. (R. 270.) On examination Plaintiff had decreased range of motion in the

cervical and lumbar spine and tenderness in the lumbar paraspinal muscles, but he was

able to ambulate independently with a steady gait. (Id.) An epidural steroid injection

was performed at L4-L5 on January 11, 2006, which lowered Plaintiff’s pain from a 10

out of 10 prior to the procedure to a 3 out of 10 post-procedure. (R. 268-69.) 

On February 16, 2006, Plaintiff reported to Dr. Leber that his neck and lower

back pain were worse . (R. 266.) On examination Plaintiff exhibited limited motion in

his lumbar spine, tenderness in his cervical and lumbar paraspinal muscles and

impaired range of motion in his left upper extremity. (R. 266-67.) However, Plaintiff

ambulated independently with a steady gait and maintained active motion in all four

extremities. (R. 266.) On a March 17, 2006 visit to Dr. Leber Plaintiff exhibited active

motion in his bilateral lower extremities and right upper extremity but was limited in his

range of motion in his left upper extremity. (R. 265, 280.) He also was able to

ambulate independently without an assistive device. (Id.)

On June 16, 2006, Plaintiff reported to the Emergency Room at Shands at

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Case 1:11-cv-00011-MP-GRJ Document 17 Filed 01/13/12 Page 7 of 17
Starke Hospital in Starke, Florida for complaints of neck pain. (R. 421-25.) A scan

performed of Plaintiff’s cervical spine showed mild disc narrowing at C5-C6 and

possible muscle spasms. (R. 426.) Plaintiff was diagnosed with a cervical muscle 21

strain and was discharged with a soft cervical collar. (R. 422, 425.)

On March 8, 2008 Dr. Eftim Adhami, M.D. performed a consultative physical

examination of Plaintiff. (R. 335-36.) On examination Plaintiff exhibited no lumbar

paravertebral muscle spasms and his straight leg testing was normal while seated and

mildly positive while supine. (R. 335.) In his back, Plaintiff’s range of motion was mildly

decreased in forward flexion only and he exhibited no pain upon palpation. (R. 336.)

Plaintiff’s left hand grip was slow and there was some muscle atrophy in the left deltoid

and arm, but Plaintiff exhibited no abnormal movements like rigidity or tremors and he

was able to pick up small objects and button clothes with his left hand, albeit somewhat

slowly. (R. 335-36.) Plaintiff was also able to walk normally and his heel, toe and

tandem walk were also all normal. (R. 336.) Dr. Adhami’s diagnosis was “1. lower back

pain due to multilevel degenerative disease, mainly related to fascia arthritis; multi-level

mild-to-moderate changes; SLRs [standing leg raises] are negative at least seated,

mildly positive supine but not convincing; 2. Left arm, history of injury and muscle

transfer surgery; hand is generally functional even though it gives the impression of

slow function; ... deltoid is atrophic due to nerve damage and surgery ...” (R. 336.) 

Plaintiff reported to the Shands at AGH Hospital ER on December 4, 2008

complaining of a rash that had spread all over his body. (R. 356-62.) Physical

The medical record from this visit does not reflect whether this was an X-ray or CT scan. (R.

21

426.)

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examination reflected his neck and back were non-tender to palpation, his upper and

lower extremities were non-tender with full range of motion, and his gait was steady. 

(R. 357.)

On March 26, 2010, consulting physician William V. Choisser, M.D., J.D.,

performed an examination of Plaintiff at the request of Plaintiff’s then-counsel. (R. 438-

46.) Dr. Choisser’s impression was “1. Chronic back pain with a history of degenerative

disc disease and arthritis with evidence of sciatica in the right buttocks. 2. Left brachial

plexus injury with grossly muscle atrophy and loss of function.” (R. 439.) As part of his

evaluation of Plaintiff, Dr. Choisser completed a Medical Source Statement of Ability To

Do Work-Related Activities (Physical), in which he concluded Plaintiff can lift up to ten

pounds occasionally (with a notation Plaintiff uses his right arm only), occasionally carry

up to ten pounds, sit for one hour at a time for a total of two hours in an eight hour

workday, and stand or walk for ten minutes at a time for a total of less than 60 minutes

in an eight hour workday. (R. 441-42.)

In March 2008, two non-examining state agency consulting physicians opined

Plaintiff was capable of occasionally lifting 20 pounds, frequently lifting 10 pounds, and

sitting, standing and walking for about 6 hours in an 8 hour workday. (R. 337-44, 348-

55.) Another non-examining state agency consulting physician arrived at an identical

conclusion in June 2009. (R 375-82.)

C. Hearing Testimony

Plaintiff testified at his administrative hearing. Plaintiff testified his last

employment had been as an apartment complex maintenance worker but he had

stopped working in 2003 due to his lower back pain. (R. 28-31.)

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Plaintiff testified he has problems with his left hand as a result of a motor vehicle

accident in 1979 in which he was a pedestrian and was hit by a car. (R. 34.) After the

accident, the triceps in Plaintiff’s left arm was transferred to the position where his

biceps muscle had previously been, which left Plaintiff without a deltoid muscle or

triceps muscle in his left arm. (R. 33.) His grip strength in his left hand is weak, but he

testified he can hold onto a tool like a hammer or screwdriver with a very weak grip with

that hand. (R. 47-49.)

Plaintiff also testified he has issues with his lower back. (R. 36.) Plaintiff’s back

issues cause him to experience shooting pains on his right side and, when he walks, his

left foot drags. (R. 36.) He has trouble bending from his waist, stooping or squatting.

(R. 47-48.) He testified he can only sit for 15 minutes at a time, stand or walk for 10

minutes at a time, and lie down for 15 minutes at a time. (R. 38-39.)

Plaintiff testified his activities of daily living consist of watching TV and taking a

walk to the end of the street and back once a day. (R. 43-44.) He can dress and bathe

himself, but has to do so slowly. (R. 51-53.)

A Vocational Expert (“VE”) also testified at the administrative hearing. The VE

testified Plaintiff’s past relevant work consisted of the positions of (i) building

maintenance repair, which was a medium work position, and (ii) plumber, which is a

heavy work position. (R. 63.) The ALJ asked the VE to assume a hypothetical

individual of Plaintiff’s age, education level and past work experience. (R. 63-64.) He

then asked the VE to assume the hypothetical individual could only lift and carry 10

pounds frequently and 20 pounds occasionally; could stand and/or walk and sit for a

total of six hours in an eight hour work day; cannot push or pull with his left hand; can

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climb ladders, ropes and scaffolds occasionally; has limitations on reaching in all

directions with his left arm; and should avoid concentrated exposure to vibrations or

working near dangerous machinery. (Id.) The VE testified the hypothetical individual

could not perform Plaintiff’s past relevant work. (R. 64.) The VE further opined,

however, the hypothetical individual could still perform several jobs existing in

significant numbers in the national economy. (Id.) The VE identified those jobs as

sandwich board carrier, outside deliverer, and parking lot attendant. (R. 64-65.) The

VE further testified there are thousands of each of those positions available in both the

state of Florida and the national economy. (Id.)

D. The ALJ’s Findings

In his written decision, the ALJ concluded Plaintiff had the severe impairments of

degenerative disc disease of the lumbar spine and left arm paralysis. (R. 13.) He

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

or equaled the Listings. (R. 14.) The ALJ further concluded Plaintiff had the RFC to

perform light work with only occasional climbing of ladders, ropes or scaffolds, limited

reaching in all directions with his left arm, and avoid concentrated exposure to

vibrations, dangerous machinery and unprotected heights. (Id.) 

The ALJ concluded Plaintiff was unable to perform any of his past relevant work. 

(R. 16.) The ALJ further concluded, considering the Plaintiff’s age, education, work

experience and residual functional capacity, there were jobs which existed in significant

numbers in the national economy Plaintiff could perform. (R. 17.) In support of this

conclusion, he cited the VE’s testimony at Plaintiff’s hearing that a hypothetical

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individual with Plaintiff’s vocational profile could perform the positions of sandwich

board carrier and parking lot attendant. (Id.) He thus concluded Plaintiff had not been

under a disability from September 15, 2003, the alleged disability onset date, through

the date of the ALJ’s decision. (R. 18.)

IV. DISCUSSION

Plaintiff contends the ALJ committed two errors in his written decision. First,

Plaintiff contends that the ALJ erred at step 2 of the sequential evaluation because he

found that Plaintiff had degenerative disk disease rather than finding that Plaintiff had a

herniated disk at L5-S1. Secondly, Plaintiff contends that the ALJ then went on to err in

evaluating Plaintiff’s RFC by failing to consider Plaintiff’s impairments in combination

and by failing to properly assess Plaintiff’s RFC. The Court will discuss each argument

below.

A. The ALJ’s Step Two Determination

Plaintiff contends the ALJ erred at Step Two by finding Plaintiff had degenerative

disk disease in his lumbar spine instead of defining the impairment as a herniated disk

at L5-S1 with stenosis and impingement of the right S1 nerve root. According to 22

Plaintiff, the objective medical evidence in the record supports much more serious back

problems than degenerative disk disease of the lumbar spine. There are two

fundamental problems with Plaintiff’s argument. First, at step 2 of the sequential

evaluation the ALJ is only required to find that the claimant suffers from a severe

It is not entirely clear where Plaintiff derived this exact language, but Dr. Leber’s progress notes

22

do reflect a diagnosis of “Lumbar pain secondary to L5-S1 with stenosis and impingement on right S1

nerve root” and similar such formulations of that diagnosis. (R. 265, 266, 280.)

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impairment in order to proceed to the next steps in the sequential evaluation. Secondly,

at step 2 of the sequential evaluation the ALJ is merely required to identify the

impairment and then to consider the functional limitations from the impairment in

determining the claimant’s RFC at step 4. That is exactly what the ALJ did in this case. 

 At Step Two of the sequential evaluation the ALJ is required to determine

whether there is any severe impairment before proceeding with the next step in the

sequential evaluation. Thus, a finding of any severe impairment is enough to satisfy the

requirement of Step Two.23

In this case, at Step Two the ALJ identified Plaintiff’s severe impairments as

including degenerative disk disease of the lumbar spine and left arm paralysis. (R. 13.) 

Although the ALJ did not include the specific medical diagnosis of “L5-S1 disk

herniation with nerve stenosis and impingement damage,” the ALJ, nonetheless, went

on to evaluate at step four of the sequential evaluation Plaintiff’s functional limitations,

including pain, resulting from Plaintiff’s alleged impairments in his lumbar spine. 

Even assuming arguendo that the ALJ should have been more precise in

identifying the impairment the failure to do so did not make any difference because the

ALJ fully analyzed Plaintiff’s lumbar disk problems in evaluating the Plaintiff’s RFC at

step four. 

24

For example, the ALJ discussed and fully considered all of the medical evidence

Jamison v. Bowen, 814 F.2d 585, 588 (11 Cir. 1987); see also, Maziarz v. Secretary of Health

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& Human Services, 837 F.2d 240, 244 (6 Cir. 1987)(noting a failure to find a particular impairment was

th

severe was not reversible error because the ALJ found other severe impairments.).

Council v. Barnhart, 127 Fed. Appx. 473, No. 04-13128, slip op. at 4 (11th Cir. Dec. 28, 2004)(

24

“[T]he ALJ could not have committed any error at step two because he found that [Plaintiff] had a severe

impairment . . . and moved on to the next step in the evaluation, which is all that is required at step two.”)

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Case 1:11-cv-00011-MP-GRJ Document 17 Filed 01/13/12 Page 13 of 17
relating to Plaintiff’s lumbar spine beginning with Plaintiff’s visit to the emergency room

in July 2004. Notably, the ALJ then discussed the CT scan of Plaintiff’s lumbar spine

conducted by Dr. Vogler on March 25, 2005. This CT scan is the one that disclosed the

bulging disc at L5-S1 with mild to moderate central stenosis with some nerve root

impingement. The ALJ then went on to analyze Plaintiff’s functional limitations related

to the problems diagnosed in Plaintiff’s lumbar spine. 

Thus, contrary to Plaintiff’s assertion, even though the ALJ did not identify at

Step Two Plaintiff’s impairment as an “L5-S1 disk herniation with nerve stenosis and

impingement damage” the ALJ expressly discussed and evaluated the functional

limitations resulting from Plaintiff’s medical issues in his lower back. Accordingly, there

was no error in failing to identify the impairment at step 2 as an “L5-S1 disk herniation

with nerve stenosis and impingement damage.” 

B. The ALJ Considered Plaintiff’s Impairments in Combination

Plaintiff also argues that the ALJ erred by failing to consider Plaintiff’s

impairments in combination in assessing Plaintiff’s RFC. 

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

as to whether the claimant is disabled. Under the law in the Eleventh Circuit this 25

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 the ALJ did just 26

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

25

Id.

26

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that. The ALJ 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. 14.) Moreover, in

determining whether the Plaintiff met a listing at step three of the sequential evaluation

the ALJ expressly stated that “Despite the claimant’s combined impairments ... “

Plaintiff’s medical evidence does not meet any listing level impairment. 

Moreover, in discussing the medical evidence in his written decision as part of

the evaluation of Plaintiff’s RFC the ALJ 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. 14.) This language evidences that 

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

sequential evaluation. 

In addition to the fact that the ALJ expressly stated he had considered Plaintiff’s

impairments in combination, a review of the ALJ’s written decision discloses that the

ALJ systematically addressed all of Plaintiff’s impairments and their corresponding

functional limitations on Plaintiff. As discussed above, the ALJ considered Plaintiff’s

numerous emergency room visits for lower back pain and the medical findings from

those visits; Plaintiff’s visits to Dr. Leber from December 2004 to March 2006 and the

progress notes from those visits; and the results of the examinations conducted by

consulting physicians Dr. Adhami and Dr. Choisser. (R. 15-16.) The ALJ also

considered the opinions of each of the three non-examining state agency physicians

who completed Physical RFC evaluations of Plaintiff. (R. 16.) 

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 Contrary to Plaintiff’s argument, the substantial medical evidence supports the

ALJ’s evaluation of Plaintiff’s RFC. For example, the ALJ properly noted that when

Plaintiff was examined by Dr. Adhami, Plaintiff’s straight leg raises tests were normal,

while range of motion in his back was mildly decreased in forward flexion only and

Plaintiff exhibited no pain in his back upon palpation. (R. 335-36.) 

The ALJ’s RFC determination was also fully consistent with the opinions

expressed by all three non-examining state agency consulting physicians. (R. 337-44,

348-55, 375-82.) Additionally, in determining Plaintiff’s functional limitations related to

his lumbar back problems the ALJ considered and relied upon Dr. Leber’s treatment

notes, which reflected Plaintiff’s gait had improved from stiff and steady on his first visit

to “[a]mbulation is independent with no assistive device required” on his last visit.(R.

277, 280.) 

Plaintiff points to the opinion of consulting physician Dr. Choisser as support for

his argument that the ALJ’s RFC evaluation failed to consider Plaintiff’s lumbar back

issues. Dr. Choisser completed a Medical Source Statement of Ability To Do WorkRelated Activities (Physical), in which he concluded Plaintiff can lift up to ten pounds

occasionally (with a notation Plaintiff uses his right arm only), occasionally carry up to

ten pounds, sit for one hour at a time for a total of two hours in an eight hour workday,

and stand or walk for ten minutes at a time for a total of less than 60 minutes in an eight

hour workday. (R. 441-42.) Dr. Choisser, however, was only a one-time consulting

physician and not a treating physician and therefore his opinions are not entitled to

controlling weight. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11 Cir. th

2004). Accordingly, the ALJ was free to give limited weight to the opinions expressed

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Case 1:11-cv-00011-MP-GRJ Document 17 Filed 01/13/12 Page 16 of 17
by Dr. Choisser. The ALJ determined that the opinion of Dr. Choisser should be given

limited weight because Dr. Choisser’s opinion on the checklist indicating significant

limitations was directly at odds with the examinations and treatment notes by Dr. Leber

and Dr. Adhami, both of whom concluded Plaintiff was able to walk normally and had

full strength. 

The Court, therefore, concludes that the ALJ properly considered and discussed

in his written decision all of Plaintiff’s impairments in combination in determining

Plaintiff’s RFC and in assessing Plaintiff’s functional limitations resulting from the

bulging disk at L5-S1. Accordingly, Plaintiff has failed to demonstrate any error by the

ALJ as result of the ALJ’s characterization at step two of Plaintiff’s lumbar issues as

degenerative disk disease rather than as a herniated disk at L5-S1 with stenosis and

impingement of the right S1 nerve root.

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 January 13, 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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Case 1:11-cv-00011-MP-GRJ Document 17 Filed 01/13/12 Page 17 of 17