IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

FREEMAN W. STONE,

Plaintiff,

vs. CASE NO. 1:11-cv-13-MP-GRJ

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff appeals from a final decision of the Commissioner of Social Security (the

“Commissioner”) denying his applications for disability insurance benefits under Title II

of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for supplemental security

income (SSI) benefits based on disability under Title XVI of the Act, 42 U.S.C. §§ 1381

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

outlining their respective positions. (Docs. 16 and 17.) For the reasons discussed

below, the undersigned recommends that the Commissioner’s decision be AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff filed his applications in January 2006, alleging an onset date of

November 4, 2004, due to pain (arthritis) in his hands, neck, and lower back, and

mental problems. R. 83, 94, 345-47. His applications were denied initially and on

reconsideration. Following a hearing at which Plaintiff was not represented, an

administrative law judge (ALJ) issued a decision finding that Plaintiff was not disabled at

any time through the date of his decision. The Appeals Council remanded the case to

Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 1 of 14
a different ALJ for another hearing because it was unclear whether Plaintiff

acknowledged his right to representation and wanted to proceed with the hearing

without a representative. R. 308-09. Following another administrative hearing, at

1

which Plaintiff was represented, the ALJ issued a decision on March 18, 2009, finding

that Plaintiff was not under a disability as defined in the Act. R. 17-25. The Appeals

Council denied review on November 19, 2010, rendering the ALJ’s decision the final

decision of the Commissioner. R. 8-10. 

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 2

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.3

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,

4

In Plaintiff’s memorandum in support of the Complaint, Plaintiff erroneously states that Plaintiff’s

1

second hearing took place following a remand by the U.S. District Court. See Doc. 16 at 11.

See 42 U.S.C. § 405(g) (2000).

2

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

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835, 838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d

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842 (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).

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2

Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 2 of 14
taking into account evidence favorable as well as unfavorable to the decision.5

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

sufficient reasoning to determine that the Commissioner properly applied the law.6

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 Plaintiff

7

unable to do her previous work, or any other substantial gainful activity which exists in

the national economy.

8

The ALJ must follow five steps in evaluating a claim of disability. First, if a 9

claimant is working at a substantial gainful activity, he is not disabled. Second, if a 10

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

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

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(holding 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

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evidence detracting from evidence on which the Commissioner relied).

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.

7

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

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

8

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

9

a disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 Cir.

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1991).

20 C.F.R. § 404.1520(b).

10

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 3 of 14
not have a severe impairment and is not disabled. Third, if a claimant's impairments

11

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 12

relevant work, he is not disabled. Fifth, if a claimant's impairments (considering his 13

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.14

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 15

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

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

16

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

determination that a claimant is disabled or not disabled. 

17

20 C.F.R. § 404.1520(c).

11

20 C.F.R. § 404.1520(d).

12

20 C.F.R. § 404.1520(e).

13

20 C.F.R. § 404.1520(f).

14

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

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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:

16

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

17

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

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 4 of 14
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

exertion.” In a situation where both exertional and non-exertional impairments are 18

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

range of employment.19

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 20

introduced by a vocational expert’s testimony, but this is not the exclusive means of

introducing such evidence. Only after the Commissioner meets this burden does the 21

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

Because the Plaintiff only challenges the ALJ’s analysis with regard to his mental

impairment, and the subsequent use of the Grids, the Court will focus its discussion of

the record on those issues.

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.”).

Walker, 826 F.2d at 1003.

19

Wolfe, 86 F.3d at 1077-78.

20

See id.

21

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 5 of 14
A. Personal Background

Plaintiff was born in July 1960, and was 48 years old at the time the ALJ

rendered his decision. He reported obtaining a GED while incarcerated in the 1980's. 

He alleged disability beginning November 4, 2004, due to pain in his hands, neck, and

lower back. Plaintiff also stated that he experienced depression due to pain, mood

swings, anxiety, and fatigue. Plaintiff reported past work experience as an

attendant/custodian, mechanic, and junk yard parts puller. He stated that he worked as

a heavy equipment mechanic until the date of onset, although he acknowledged

performing remodeling work “under the table” after the alleged onset date. At the time

of the hearing in February 2009, he testified that he had been drug-free for four years

after participating in rehabilitation, and had quit drinking alcohol almost two years

previously on his own. R. 84, 125, 116-22, 40-41, 143, 343-47. 

B. Mental Impairment

Consulting psychologist Andres Nazario, Ph.D., examined Plaintiff in April 2006. 

Plaintiff reported a history of “borderline schizophrenic” and depression. Plaintiff stated

that he received psychiatric care while he was incarcerated for ten years in California. 

He reported that he has mood swings, and also reported a long history of alcohol and

drug abuse. He admitted to drinking the night before the exam, and Dr. Nazario noted

a strong smell of alcohol. Plaintiff told Dr. Nazario that he was able to go grocery

shopping, cook, clean house, do laundry, wash dishes, and work in the yard. He

reported that he “always” felt anxious and constantly frustrated, and that he considered

suicide daily, but that “it usually wears out by breakfast time.” 

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 6 of 14
Dr. Nazario’s examination reflected that Plaintiff was oriented with intact recent

and remote memory, was able to perform mental status tests without error or difficulty,

appeared to possess average intelligence, and was able to understand and follow

directions. Plaintiff appeared to have some difficulty concentrating; he was not

persistent and his approach and his pace was adequate. There was no evidence of

hallucinations, delusions, or obsessions. Dr. Nazario diagnosed Alcohol Dependence,

Polysubstance Dependence, Bipolar Disorder NOS. He recommended a psychiatric

consultation for assessment for medication, and treatment for drug and alcohol

dependence. R. 189-90. 

A Mental RFC Assessment completed by Angeles Alvarez-Mullin, M.D., in April

2006 indicated no significant limitations or no evidence of limitation in 15 of the 20

assessment categories, and only moderate limitations in: ability to understand and

remember detailed instructions; ability to carry out detailed instructions; ability to

maintain concentration for extended periods; ability to work in coordination with or

proximity to others without being distracted by them; ability to set realistic goals or make

plans independently of others. Dr. Alvarez-Mullins’ narrative explanation stated that

Plaintiff “appears capable of carrying out simple instructions; he may have difficulty with

complex ones. Attention and concentration may be decreased [occasionally]. Although

capable of appropriate brief/superficial interaction with others, [Plaintiff] may not be able

to sustain prolonged/ongoing interaction with co-workers. Best suited for working by

himself.” R. 191-93.

On September 12, 2006, Dr. Nazario again examined Plaintiff and noted that he

was alert and cooperative, was oriented with intact recent and remote memory, was

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 7 of 14
able to perform a series of mental tasks without error or difficulty, demonstrated an

ability to concentrate during the interview, was persistent with adequate pace, appeared

to be of average intelligence, and showed fair judgment and insight. There was no

evidence of hallucinations, delusions, or obsessions. Dr. Nazario stated that Plaintiff

appeared able to concentrate, understand and follow directions, and interact with others

appropriately. He diagnosed “Major Depressive Disorder, Recurrent, Moderate,” and

“Alcohol Dependence. Rule out Bipolar Disorder.” He recommended psychiatric

consultation and alcohol treatment. R. 222-25. 

A Psychiatric Review Technique completed by Dr. Steven Wise in September

2006 indicated mild restriction of activities of daily living, mild difficulties maintaining

social functioning, moderate difficulties maintaining concentration, persistence, or pace,

and no episodes of decompensation. R. 236. A Mental RFC Assessment completed

by Dr. Wise indicated no significant limitations for 15 of the 20 assessment categories,

and only moderate limitations in: ability to understand and remember detailed

instructions; ability to carry out detailed instructions; ability to maintain concentration for

extended periods; ability to complete a normal workday and workweek without

interruptions and to perform at a consistent pace without unreasonable rest periods;

ability to set realistic goals or make plans independently of others. Dr. Wise’s narrative

explanation stated that “[c]laimant may have some concentration and memory deficits

limiting him to simple tasks. He interacts adequately with others. He is capable of

simple and routine tasks, and perhaps more were he to maintain sobriety.” R. 240-41.

Medical reports from Meridian-Behavioral Healthcare in April 2007 reflect that

Plaintiff had good activities of daily living, appropriate manner, normal motor behavior,

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 8 of 14
grossly intact cognition, and normal speech. Plaintiff’s progress was rated as a 7 on a

scale of 1 to 10. Subsequent records from Meridian showed that Plaintiff obtained

medication in August and September 2007, that his progress was rated as a 6 on a

scale of 1 to 10 on August 7, 2007, that his progress was rated as a 9 on September

11, 2007, and that he was a “no show” on October 16, 2007. R. 285-95, 326-32. 

C. ALJ’s Decision

Based on the hearing testimony and the medical evidence of record, the ALJ

concluded at Step Two that Plaintiff had a severe combination of physical and mental

impairments. The ALJ found that Plaintiff’s mental impairments, however, imposed only

“mild mental functional limitations.” Specifically, the ALJ found mild limitations in

activities of daily living, mild limitation of social functioning, and moderate limitation in

Plaintiff’s ability to adequately maintain his concentration, attention, and pace. R. 20. 

The ALJ concluded at Step Four that Plaintiff’s impairments prevented him from

returning to his past relevant work at the “heavy” exertional level, but that he retained

the residual functional capacity for medium work. Given Plaintiff’s RFC, age, education,

work experience, and non-exertional limitations, the ALJ utilized the Medical Vocational

Guidelines as a framework at Step Five to conclude that Plaintiff was not disabled. The

ALJ stated that Plaintiff’s non-exertional limitations had little or no effect on the

occupational base of unskilled medium work, and did not utilize the testimony of a VE to

determine that Plaintiff could perform other work. The ALJ concluded that Plaintiff

“should be able to perform at least simple, repetitive, non-complex, unskilled, medium

work in a regular work setting, without much interference from his non-exertional

limitations.” Id. at 20-25. 

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 9 of 14
IV. DISCUSSION

Plaintiff contends that the ALJ committed reversible error because he did not

properly assess Plaintiff’s mental RFC at Step 4 of the analysis, and erred in relying on

the Grids instead of the testimony of a VE at Step 5, in view of Plaintiff’s “severe” nonexertional mental impairment. Doc. 16. Plaintiff contends that pursuant to Winschel v.

Commissioner, 631 F.3d 1176 (11 Cir. 2011), the ALJ was required to utilize testimony th

from a VE because the ALJ found that Plaintiff had moderate limitations in

concentration, persistence, and pace.

The Commissioner responds that the ALJ properly accounted for the mental

limitations documented in the record in his RFC determination by concluding that

Plaintiff could perform simple, repetitive, non-complex, and unskilled work. The

Commissioner contends that Winschel does not mandate the use of VE testimony in

this case because the medical evidence supports a conclusion that Plaintiff could still

perform simple routine tasks or unskilled work. Doc. 17. 

As to Plaintiff’s first argument, substantial evidence supports that ALJ’s

assessment of the severity of Plaintiff’s mental impairments as imposing only “mild

mental functional limitations.” The ALJ noted that the medical evidence showed that

Plaintiff’s mental and emotional complaints were manageable with conservative medical

care and medications, and that he had essentially normal activities of daily living. The

ALJ noted Dr. Nazario’s assessments, which, as summarized above, showed that

Plaintiff was alert and cooperative, oriented with intact memory, performed mental

status tests adequately, had average intelligence, and could understand and follow

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 10 of 14
directions. In Dr. Nazario’s second assessment, Plaintiff was able to concentrate, was

persistent with adequate pace, appeared to be of average intelligence, showed fair

judgment and insight, could understand and follow directions, and interact with others

appropriately. The ALJ also considered Plaintiff’s testimony that he worked after his

alleged onset date of disability by doing some remodeling work and getting paid “under

the table,” an assertion that is inconsistent with Plaintiff’s allegations of disabling

physical and mental impairments since his onset date. The ALJ also noted Plaintiff’s

diagnosis of alcohol dependence, and observed that Plaintiff has a history of performing

substantial gainful activity despite his history of substance abuse. In his assessment,

Dr. Wise observed that Plaintiff appeared capable of at least simple and routine tasks,

and perhaps more if he maintained sobriety. At the February 2009 hearing, Plaintiff

testified that he had maintained sobriety for almost two years, and had been drug-free

for four years. 

As to Plaintiff’s second argument, once the ALJ determined, based upon

substantial evidence, that the Plaintiff’s mental impairment did not significantly limit his

ability to perform basic work activities, it was appropriate for the ALJ to use the Grids to

determine the availability of jobs that the Plaintiff could perform with his exertional

limitations. “Before reaching the conclusion that the Grids will not be applied because 22

the claimant alleges non-exertional limitations, those non-exertional limitations must be

severe enough to restrict a full range of gainful employment at the designated level.” 

23

20 C.F.R. §404.1569a(d).

22

Kirk v. Secretary of HHS, 667 F.2d 635, 647 (6 Cir. 1981).

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Additionally, relying upon Winschel, Plaintiff suggests that because the ALJ

noted the Plaintiff had moderate limitations in concentration, persistence and pace,

these limitations should have been included in the RFC and therefore the ALJ should

have used a VE, instead of relying upon the Grids. While the Eleventh Circuit in

Winschel required the ALJ to include limitations in concentration, persistence, and pace

in a hypothetical question to a VE rather than simply limiting the claimant to simple,

routine or unskilled work, Winschel does not create a bright-line rule that an ALJ must

always utilize the testimony of a VE after making a finding that a claimant has

moderately limited concentration, persistence, and pace and does not establish a rule

that the ALJ cannot account for limitations in concentration, persistence and pace by

limiting the claimant to simple, routine and unskilled work. Rather, as the Winschel

court pointed out, the problem there was that the ALJ failed to point to medical

evidence suggesting that the claimant’s ability to work was unaffected by the limitation.

The Winschel panel expressly noted that limiting a claimant to unskilled work where the

claimant has limitations in concentration, persistence and pace is appropriate and

“sufficiently accounts for such limitation” in cases where the medical evidence

demonstrates that a claimant can engage in simple, routine tasks or unskilled work

despite limitations in concentration, persistence, and pace. Id. at 1180. That is exactly

what the ALJ did in this case.

Here, despite the fact that Plaintiff had moderate limitations in concentration,

persistence and pace the ALJ concluded that the medical evidence and other evidence

in the record nonetheless demonstrated that Plaintiff could still engage in simple,

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 12 of 14
routine tasks or unskilled work. In support of this conclusion the ALJ pointed to the

following evidence: (1) Dr. Nazario’s examination of Plaintiff, following which he

concluded that Plaintiff was able to concentrate and was persistent with adequate pace,

and could follow directions; (2) Dr. Alvarez-Mullins’ statement that Plaintiff’s attention

and concentration may be decreased “occasionally” but that he could carry out simple

instructions; (3) statements reflecting that Plaintiff’s condition was amenable to

conservative treatment, including medication and treatment for alcohol abuse; (4) Dr.

Wise’s statement that Plaintiff is capable of at least simple and routine tasks, and

perhaps more with sobriety; and (5) Plaintiff’s own statements that he had performed

remodeling work after the alleged onset date and had maintained sobriety prior to the

hearing. This evidence is more than sufficient to satisfy the standard set forth in

Winschel. See id. 

Thus, because the ALJ properly took into account any limitations with regard to

concentration, persistence and pace by finding in the RFC that Plaintiff could engage in

simple, routine tasks or unskilled work it was appropriate to rely upon the Grids

because a limitation to simple routine tasks or unskilled work does not erode the

occupational base in the Grids. The regulations support this view. Title 20 C.F.R. 404,

Subpart P, Appendix 2, R. 203.00(a) &)(b), expressly provides that “[t]he functional

capacity to perform medium work includes the functional capacity to perform sedentary,

light, and medium work. Approximately 2500 separate sedentary, light, and medium

occupations can be identified, each occupation representing numerous jobs in the

national economy which do not require skills or previous experience and which can be

performed after a short demonstration or within 30 days . . . [t]he functional capacity to

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Case 1:11-cv-00013-MP-GRJ Document 18 Filed 01/19/12 Page 13 of 14
perform medium work represents such substantial work capability at even the unskilled

level that a finding of disabled is ordinarily not warranted in cases where a severely

impaired person retains the functional capacity to perform medium work.” The ALJ

concluded that Plaintiff’s non-exertional limitations had little or no effect on the

occupational base of unskilled medium work. Accordingly, neither the record nor the

Plaintiff’s Memorandum in Opposition support a contrary conclusion. 

The Court, therefore, concludes that there is substantial evidence to support the

ALJ’s finding that Plaintiff’s mental limitations were not severe impairments.

Consequently, the ALJ’s use of the Grids, to determine the existence of jobs in the

national economy that Plaintiff can perform, was not error.

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 19 2012. th

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

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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