IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JULIA O. SULLIVAN, *

 * 

Plaintiff, *

*

vs. * CIVIL ACTION 08-00596-B

*

MICHAEL J. ASTRUE, *

Commissioner of *

Social Security, *

*

Defendant. *

ORDER

Plaintiff Julia O. Sullivan (“Plaintiff”) brings this action

seeking judicial review of a final decision of the Commissioner of

Social Security denying her claim for period of disability and

disability insurance benefits under Title II of the Social Security

Act, 42 U.S.C. §§ 401 et seq. On September 16, 2009, the parties

consented to have the undersigned conduct any and all proceedings

in this case. (Doc. 15). Thus, this case was referred to the

undersigned to conduct all proceedings and order the entry of

judgment in accordance with 28 U.S.C. § 636( c) and Fed.R.Civ.P.

73. (Doc. 16). Oral argument was held on September 16, 2009.

Upon careful consideration of the administrative record, the oral

arguments and the parties’ briefs, it is ORDERED that the decision

of the Commissioner be AFFIRMED.

I. Procedural History

Plaintiff filed applications for a period of disability and

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 1 of 40
2

disability insurance benefits on September 1, 2005, alleging that

she has been disabled since August 1, 2005, due to depression,

fatigue, panic disorder, and high blood pressure. (Tr. 49-51, 72).

Plaintiff’s application was denied initially, and she filed a

timely Request for Hearing before an Administrative Law Judge

(hereinafter “ALJ”). (Tr. 32-33, 39). On August 28, 2007, ALJ

Ricardo M. Ryan (“ALJ Ryan”) held an administrative hearing which

was attended by Plaintiff, her representative and vocational expert

(hereinafter “VE”) Doug Miller. (Tr. 247-280). On April 7, 2008,

the ALJ entered an unfavorable decision finding that Plaintiff is

not disabled. (Tr. 14-26). Thereafter, the Appeals Council (“AC”)

denied Plaintiff’s request for review on September 11, 2008; thus,

the ALJ’s decision became the final decision of the Commissioner in

accordance with 20 C.F.R. § 404.981. (Tr. 5-7). The parties agree

that this case is now ripe for judicial review and is properly

before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

II. Issues on Appeal

A. Whether the ALJ erred in finding that Plaintiff could

return to her past relevant work and in failing to fully

explain his decision. 

B. Whether the ALJ erred by failing to perform a function-byfunction analysis of Plaintiff’s limitations in assessing her

RFC in exertional terms. 

C. Whether the ALJ erred by failing to consider the impact of

Plaintiff’s morbid obesity on her residual functional

capacity.

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 2 of 40
3

D. Whether the ALJ erred in failing to assign controlling weight,

or any weight, to the opinion of Plaintiff’s treating

physician, Dr. Charla Evans, M.D. 

E. Whether the ALJ erred by finding that Plaintiff’s

hypertension, cervical arthritis, obesity and edema are not

severe impairments. 

III. Factual Background

Plaintiff was born on January 14, 1964, and was 43 years old

at the time of the administrative hearing. (Tr. 49, 69, 250).

Plaintiff reported that she left high school in the 9th grade, that

she received her GED, and that she received an associate’s degree

in office administration from Bishop State. (Tr. 76, 252-253).

She has past work experience as a utility worker for the county

schools. (Tr. 78, 91, 254-258). Plaintiff testified that in this

classification, she worked as a bus driver, an office helper, a bus

inspector helper, a mechanic helper and as a janitor. (Tr. 254,

255-257). 

According to Plaintiff, she became disabled and stopped

working in August 2005, when she passed out on the bus and did not

know where she was. Plaintiff also testified that she cannot work

due to swelling in her feet and legs, panic and anxiety attacks,

and depression. (Tr. 258, 260). Plaintiff also testified that

some days, she spends all day in bed, that she had been suicidal

six months before the hearing, and that she had started seeing Dr.

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 3 of 40
1

This Court’s review of the Commissioner’s application of

legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999

(11th Cir. 1987).

4

Hammond, a psychiatrist, on an as needed basis. (Tr. 262-263, 266).

According to Plaintiff, she lives with her son who has a seizure

disorder and learning disabilities, and she is able to take care of

her personal needs and cook. (Tr. 258, 265-266). Plaintiff also

testified that her mom and sister assist her with household

functions. Plaintiff further testified that she goes out with her

boyfriend to the mall, to dinner or fishing. (Tr. 265-266).

Plaintiff further testified that she has problems with

concentration and remembering things. (Tr. 268). However, she

also testified that she is able to read the newspaper and the

Bible, and that she is capable of writing a letter, paying her

bills, managing her money and balancing her checkbook. (Tr. 253-

254).

IV. Analysis

A. Standard of Review

In reviewing claims brought under the Act, this Court’s role

is a limited one. The Court’s review is limited to determining 1)

whether the decision of the Secretary is supported by substantial

evidence and 2) whether the correct legal standards were applied.

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).1 A court

may not decide the facts anew, reweigh the evidence, or substitute

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 4 of 40
5

its judgment for that of the Commissioner. Sewell v. Bowen, 792

F.2d 1065, 1067 (11th Cir. 1986). The Commissioner’s findings of

fact must be affirmed if they are based upon substantial evidence.

Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding that

substantial evidence is defined as “more than a scintilla but less

than a preponderance” and consists of “such relevant evidence as a

reasonable person would accept as adequate to support a

conclusion[]”). In determining whether substantial evidence

exists, a court must view the record as a whole, taking into

account evidence favorable as well as unfavorable to the

Commissioner’s decision. Chester v. Bowen, 792 F. 2d 129, 131 (11th

Cir. 1986); Short v. Apfel, 1999 U.S. DIST. LEXIS 10163 (S.D. Ala.

June 14, 1999).

B. Discussion

An individual who applies for Social Security disability

benefits must prove his disability. 20 C.F.R. §§ 404.1512,

416.912. Disability is defined as the “inability to do 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 twelve months.” 42 U.S.C. §§

423(d)(1)(A), 404.1505(a), 416.905(a). The Social Security

regulations provide a five-step sequential evaluation process for

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2

The claimant must first prove that he or she has not

engaged in substantial gainful activity. The second step

requires the claimant to prove that he or she has a severe

impairment or combination of impairments. If, at the third step,

the claimant proves that the impairment or combination of

impairments meets or equals a listed impairment, then the

claimant is automatically found disabled regardless of age,

education, or work experience. If the claimant cannot prevail at

the third step, he or she must proceed to the fourth step where

the claimant must prove an inability to perform their past

relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.

1986). In evaluating whether the claimant has met this burden,

the examiner must consider the following four factors: (1)

objective medical facts and clinical findings; (2) diagnoses of

examining physicians; (3) evidence of pain; (4) the claimant’s

age, education and work history. Id. at 1005. Once a claimant

meets this burden, it becomes the Commissioner’s burden to prove

at the fifth step that the claimant is capable of engaging in

another kind of substantial gainful employment which exists in

significant numbers in the national economy, given the claimant’s

residual functional capacity, age, education, and work history. 

Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the

Commissioner can demonstrate that there are such jobs the

claimant can perform, the claimant must prove inability to

perform those jobs in order to be found disabled. Jones v.

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)). 

6

determining if a claimant has proven her disability. 20 C.F.R. §§

404.1520, 416.920.2

In case sub judice, the ALJ determined that Plaintiff met the

nondisability requirements for a period of disability and disability

insurance benefits and was insured for benefits through December 31,

2009. (Tr. 19). The ALJ concluded that Plaintiff has not engaged

in substantial gainful activity since August 1, 2005, her alleged

disability onset date. Id. The ALJ determined that while Plaintiff

has the severe impairments of panic disorder without agoraphobia and

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 6 of 40
3

While the undersigned has examined all of the medical

evidence contained in the record, including that which was

generated before Plaintiff’s alleged onset date, only that

evidence which is relevant to the issues before the Court is

included in the summary.

4

Approximately 15 pages of treatment notes from Dr. Evans

are included in the record; however, the notes are undated. 

Thus, it is not clear if there records relate to treatment

received during the relevant time period. (Tr. 163-166, 168-169,

172-181). 

7

depressive disorder NOS, they do not meet or medically equal the

criteria for any of the impairments listed in 20 C.F.R. Pt. 404,

Subpt. P, App. 1, Regulations No. 4. Id. The ALJ concluded that

Plaintiff has the residual functional capacity (hereinafter “RFC”)

to perform semiskilled work over a wide range of exertional levels,

and that contact with the general public should not be a usual job

duty. (Tr. 21). He also found that she was able to return to her

past relevant work as a utility worker, except that she could not

return to her job as a school bus driver. (Tr. 26). 

The relevant evidence3 reveals that Plaintiff underwent nerve

conduction tests on April 8, 2004, 15 months before her alleged

onset date, which were normal. (Tr. 203-204). An MRI of her

cervical spine on the same day showed mild degenerative disc

disease. (Tr. 205). 

As best the Court can discern, Plaintiff was treated by Charla

Evans, M.D., in 2005 and 20064. Dr. Evans completed a “Continuing

Disability Claim Form dated August 1, 2005. On the form, Dr. Evans

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 7 of 40
5

On a Mental Residual Functional Capacity Questionnaire

completed on August 11, 2006, Dr. Evans states that she is not a

psychiatrist. (Tr. 184-185).

8

lists Plaintiff’s primary disabling conditions as major depression,

causing fatigue, poor concentration and emotional lability5

, and

opines that Plaintiff should not drive. Dr. Evans further opines

that Plaintiff’s prognosis is fair, and that her condition should

significantly improve in three to four months. (Tr. 116). Dr.

Evans also completed a Sick Leave Certification dated August 19,

2005, in which she diagnoses Plaintiff with major depression and

panic disorder, and opines that these impairments are probably of

lifelong duration. She recommends that Plaintiff not drive a school

bus. (Tr. 118). 

Plaintiff was seen by Dr. Evans on December 30, 2005, and

reported nausea. She was diagnosed with hypertension, panic

disorder, anxiety, major depression, irritable bowel syndrome

(“IBS”), and osteoarthritis in her neck. (Tr. 161-162). During an

April 14, 2006 visit, Plaintiff was diagnosed with low back pain,

chronic anxiety, major depression, panic disorder, IBS, recurrent

follulitis, and gastroesophageal reflux disorder. (Tr. 159-160).

Plaintiff was next seen by Dr. Evans on June 28, 2006, and was

diagnosed with major depression, panic disorder, upper respiratory

infection, bronchitis, gastroesophageal reflux disorder and obesity.

(Tr. 157-158). In treatment notes dated August 7, 2006, 

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 8 of 40
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Dr. Evans notes that Plaintiff complained of a sore on the back of

her leg. She was diagnosed with cellulitis – left leg, upper

respiratory infection, and major depression/anxiety. (Tr. 155-156).

During an August 11, 2006 follow-up visit, Plaintiff was diagnosed

with spider bite. (Tr. 153-154).

Dr. Evans completed a Physical Capacities Evaluation on August

11, 2006. In one place in the evaluation, Dr. Evans opines that

Plaintiff cannot sit/stand/walk at all and that she must frequently

elevate her feet when sitting; in another place in the evaluation,

she opines that Plaintiff can sit a total of two hours and

stand/walk for a total of one hour in an eight-hour workday, and

that she must frequently elevate her feet/legs when seated. 

According to Dr. Evans, Plaintiff can lift up to 10 pounds for two

hours of the day, can lift up to 25 pounds for one hour during the

day, and cannot lift more than 25 pounds. She found that Plaintiff

has no limitation on simple grasping or pushing/pulling with arm

controls, but she is unable to do fine manipulation. Dr. Evans also

opines that Plaintiff cannot use her legs and feet for repetitive

action, that she can bend and reach for one hour, and that she

cannot squat, crawl or climb at all. Dr. Evans further opines that

Plaintiff is totally restricted from activities at unprotected

heights, around moving machinery and involving driving automotive

equipment, and that Plaintiff is moderately limited in activities

while exposed to marked changes in temperature and humidity, and

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 9 of 40
10

while exposed to dust, fumes and gases. Dr. Evans opines that

Plaintiff has been impaired for two years, and that she is unable

to work an eight-hour day, 40 hours per week on a sustained basis

without missing more than two days of work per month. (Tr. 183).

Dr. Evans also completed a Mental Residual Functional Capacity

Questionnaire dated August 11, 2006; however, she noted that she is

not a psychiatrist. Dr. Evans opines that Plaintiff has a marked

limitation on her ability to respond appropriately to customary work

pressures and to complete work-related activities in a normal

workday or workweek. She further opines that Plaintiff is

moderately limited in her ability to respond appropriately to

supervision and co-workers, and to perform simple and repetitive

tasks. According to Dr. Evans, Plaintiff has had these limitations

for 12 months, or is expected to have them for 12 months. Dr. Evans

also noted that Plaintiff’s medication makes her sedated and dizzy.

(Tr. 184-185).

In a letter dated November 13, 2007, Dr. Evans opines that

Plaintiff is medically disabled due to major depression and panic

disorder. She further notes that Plaintiff “is also treated for

high blood pressure and edema, but her debilitating diagnoses are

the former.” (Tr. 224, 231).

Plaintiff underwent a mental evaluation by Lucile T. Williams,

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 10 of 40
6

Plaintiff had breast reduction surgery on October 17, 2005. 

(Tr. 119-125). 

11

Psy.D. on October 28, 20056. Plaintiff reported her daily

activities as lying in bed most of day, watching television,

reading, cleaning the house, cooking, washing clothes, preparing

homework for her internet college classes, and grocery shopping.

Dr. Williams diagnoses Plaintiff with panic disorder without

agoraphobia and depressive disorder, NOS. Dr. Williams opines that

Plaintiff is likely to have a favorable response to treatment in six

to twelve months with treatment including psychotherapy. (Tr. 126-

129).

Ellen Eno, Ph.D. completed a Mental Residual Functional

Capacity Assessment on November 1, 2005. Dr. Eno concluded that

Plaintiff is moderately limited in her ability to understand,

remember and carry out detailed instructions; to maintain attention

and concentration for extended periods; and to interact

appropriately with the general public. She also found that

Plaintiff is not significantly limited in her ability to remember

locations and work-like procedures; to understand, remember and

carry out very short and simple instructions; to perform activities

within a schedule, maintain regular attendance, and be punctual

within customary tolerances; to sustain an ordinary routine without

special supervision; to work in coordination with or proximity to

others without being distracted by them; to make simple work-related

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 11 of 40
7

Lortab is a narcotic pain reliever, used to relieve

moderate to severe pain. See, www.drugs.com. Last visited

September 4, 2009. 

8

Alprazolam is a benzodiazepines, used to treat anxiety

disorders. See, www.drugs.com. Last visited September 4, 2009. 

12

decisions; and to complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at

a consistent pace without an unreasonable number and length of rest

periods. Dr. Eno also found that Plaintiff is not significantly

limited in any area of social interaction other that the ability to

interact appropriately with the general public as stated above, and

is not significantly limited in any area of adaptation. (Tr. 130-

133).

Dr. Eno completed a Psychiatric Review Technique on November

1, 2005. She opined that Plaintiff is moderately limited in her

ability to maintain social functioning and in her ability to

maintain concentration, persistence or pace, and is mildly limited

in her activities of daily living. (Tr. 144). 

Travis Rutland, M.D., completed a physical examination of

Plaintiff on November 19, 2005. Her listed medications are Diovan,

Lortab7

, Cymbalta, and Alprazolam8. On physical exam, she was

mildly obese, ambulating briskly, and getting on and off the

examination table without an assistive device. (Tr. 149-150). Her

straight leg raising was negative bilaterally, and she had 5/5

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 12 of 40
13

strength bilaterally in the upper and lower extremities in all major

muscle groups. Plaintiff’s sensory exam was normal, and her

reflexes were 2+ and symmetric in bilateral upper and lower

extremities. Dr. Rutland diagnosed Plaintiff with anxiety and

depression, hypertension and arthritis of her cervical spine. He

noted that the majority of Plaintiff’s limitations appeared to be

psychiatric. (Tr. 148-152). 

Treatment notes from Northside Clinic reflected that Plaintiff

was treated three times during the October/November 2006 period.

Plaintiff reported low back pain, sinus, cough, constipation, head

and chest congestion, depression and urinary tract infection. She

was diagnosed with low back pain, major depression, obesity,

hypertension, bronchitis, upper respiratory infection, obesity and

disability with panic attacks and urinary tract infection.

Plaintiff was prescribed medication and referred to Dr. Hammond.

(Tr. 207-212) 

Donald Newman, M.D., completed a form completed for the

Retirement Systems of Alabama (“RSA”) dated November 29, 2006. He

diagnosed Plaintiff with panic disorder, anxiety, and major

depression. He opined that Plaintiff’s condition is permanent, and

that exacerbations of her condition are unpredictable. He

restricted Plaintiff from driving children, and recommended that

she have a position that does not require driving school children.

(Tr. 189-190). 

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 13 of 40
9

Amoxicillin is an antibiotic, used to treat many different

types of infections caused by bacteria. See, www.drugs.com.

Last visited September 4, 2009).

10Zelnorm is used to treat irritable bowel syndrome marked by

constipation. It was withdrawn from the U.S. market in 2007. 

See, www.drugs.com. Last visited September 4, 2009). 

11Celexa is an antidepressant, used to treat depression. See,

www.drugs.com. Last visited September 4, 2009). 

14

Plaintiff was evaluated by psychiatrist Marilynn Hammond, M.D.,

LLC on December 4, 2006. Dr. Hammond lists her current medications

as Xanax, Cymbalta, Wellbutrin, Amoxicillin9, Codeine syrup, Diovan,

Potassium, and Zelnorm10. On mental exam, Plaintiff’s insight was

and judgment were poor. She was alert and oriented times three, she

had low or below average IQ, her memory was intact and she was

deemed a low risk of danger to herself or others. (Tr. 194-195).

In assessing Plaintiff, Dr. Hammond reported that she last treated

Plaintiff in 2003 and at that time, Plaintiff had done well on

Serzone and Celexa11, had done well in therapy and was coping well.

Dr. Hammond opined that Plaintiff had not done as well since she

stopped therapy and changed medications. She further opined that

Plaintiff has very limited coping abilities and very limited

cognitive abilities. She diagnosed Plaintiff with moderate,

recurrent, major depression and borderline IQ, prescribed Celexa and

Trazodone, and referred her to Dr. Lucile Williams for individual

psychotherapy. (Tr. 195). 

Plaintiff was next seen by Dr. Hammond on December 21, 2006.

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 14 of 40
12Decadron is a corticosteroid drug, used to reduce

inflammation. See, www.drugs.com. Last visited September 4,

2009.

13Medrol is a corticosteroid drug, used to reduce

inflammation. See, www.drugs.com. Last visited September 4,

2009. 

14Entex is an expectorant, used to help loosen congestion in

the chest and throat. See, www.drugs.com. Last visited September

4, 2009. 

15

Dr. Hammond observed that Plaintiff was very dramatic and very

interested in getting disability. (Tr. 192). 

Also included in the record are treatment notes of Karen

Jimenez, M.D. Plaintiff presented to Dr. Jimenez on January 25,

2007, complaining of dizziness, sinus infection and night sweats.

Her physical exam was within normal limits. She was diagnosed with

post surgical menopause, hypertension, sinusitis and history of

ovarian cyst, and was prescribed Decadron12, Medrol13 and Entex14.

(Tr. 218-219). Plaintiff returned to Dr. Jimenez on February 13,

2007, complaining of dizziness, depression, lightheadedness,

epigastric discomfort, nausea, jerking legs, depression, and not

leaving home much. Dr. Jimenez noted that Plaintiff was welldressed with makeup, a change from the prior visit. Her physical

exam was normal except for an ulcer on her tongue, with no cyanosis

or edema. She was diagnosed with depression, dizziness and restless

legs syndrome. (Tr 217). 

Dr. Hammond completed a Mental Residual Functional Capacity

Questionnaire dated August 6, 2007. She opined that Plaintiff had

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 15 of 40
16

no restriction of activities of daily living and no difficulty in

maintaining social functioning. She estimated that Plaintiff would

seldom have deficiencies of concentration, persistence or pace that

result in failure to complete tasks in a timely and appropriate

manner. She further opined that Plaintiff could be expected to

experience one or two episodes of decompensation in work or worklike settings, causing Plaintiff to withdraw or experience

exacerbation of signs and symptoms for a period lasting at least two

weeks. Dr. Hammond opined that Plaintiff is markedly limited in her

ability to respond appropriately to customary work pressures,

moderately limited in her ability to complete work related

activities in a normal workday or workweek, in that she complains

of swelling in her legs, and is mildly limited in her ability to

respond appropriately to co-workers. She notes that these

limitations have not lasted 12 months, and would not be expected to

last 12 months, that the earliest date these limitations occurred

was January 2001, and that the possible side effect of her

medication was weight gain. Dr. Hammond noted that Plaintiff’s

limitations may have more to do with obesity, cognitive ability, and

self confidence, as Plaintiff told her that she cannot drive a

school bus anymore, and that she refuses to do jobs such as cooking

because she now has a college degree and is not able to stand on her

feet. (Tr. 222-223). 

Plaintiff was evaluated by C.E. Smith, M.D., LLC on November

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 16 of 40
17

12, 2007. In his November 26, 2007 report, Dr. Smith stated that

on mental exam, Plaintiff was alert and in good contact, and that

she presented complaints with intensity, spoke with good

articulation and was fairly well spoken. He noted that her speech

was a little pressured and circumstantial with regard to somatic

complaints. She was relevant and coherent, and euthymic with good

range of appropriate affect. Cognitively she cooperated well,

performed well, and gave the impression of normal intelligence and

no organicity. She was well-oriented, with intact memory, and good

fund of information, and had facility with simple calculations, and

uniformly abstract interpretations of proverbs. (Tr. 225-227). 

Dr. Smith completed a Medical Source Opinion, in which he

opined that Plaintiff was mildly limited in her ability to use

judgment in detailed or complex work-related decision; to deal with

changes in a routine work setting; to understand, remember, and

carry out detailed or complex instructions; and to maintain

attention, concentration or pace for periods of at least two hours.

He further opined that Plaintiff was not limited in her ability to

respond appropriately to supervision, co-workers, customers or other

members of the general public; to understand, remember, and carry

out simple, one and two-step instructions; or to maintain social

functioning and activities of daily living. (Tr. 228-229).

In treatment notes dated March 8, 2007, Dr. Hammond diagnosed

Plaintiff with major depression, panic disorder with agoraphobia,

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 17 of 40
15The Global Assessment of Functioning (hereinafter “GAF”) is

a numeric scale used to rate the social, occupational and

psychological functioning of adults. A GAF of 31-40 indicates

some impairment in reality testing or communication, or a major

impairment in several areas, such as work or school, family

relations, judgment, thinking, or mood. See

http://psyweb.com/Mdisord/DSM_IV/jsp/Axis_V.jsp. (Last visited

March 23, 2010). 

16A GAF of 50 indicates severe symptoms or any serious

impairment in social, occupational or school functioning. See

http://psyweb.com/Mdisord/DSM_IV/jsp/Axis_V.jsp. (Last visited

March 23, 2010). 

18

borderline IQ, obesity, hypertension, and status post hysterectomy

and breast reduction, and assigned a GAF of 4015. Dr. Hammond

observed that Plaintiff had no insight, poor judgment, and okay

concentration and memory. She also noted that Plaintiff has no job,

no activity, sleeps all day and is gaining weight dangerously. She

opined that Plaintiff needed a job or regular activity because she

clearly did better when working. Accordingly, she recommended that

Plaintiff get a job, not stay home in bed, and that she see a

therapist. (Tr. 237).

During a May 24, 2007 visit, Dr. Hammond’s diagnosis was

unchanged. Plaintiff was assigned a GAF of 5016. Plaintiff reported

that she was doing better. (Tr. 236). Plaintiff’s next visit was

on August 6, 2007. Her diagnosis was unchanged. Plaintiff reported

that she was doing okay, but she did not feel she could work. (Tr.

235). In treatment notes dated October 3, 2007, Plaintiff’s

concentration was good and her memory was intact. Her insight was

poor and judgment was limited. Plaintiff reported that she was

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 18 of 40
17Prozac an antidepressant, used to treat major depressive

disorder. See, www.drugs.com. Last visited September 4, 2009.

19

putting in applications for work, but was not exercising. She also

reported taking classes for a degree in Human Resources. Dr.

Hammond recommended that Plaintiff continue her medications and see

“Dr. Annie” for group therapy. (Tr. 234). 

Plaintiff returned to Dr. Hammond on December 12, 2007. Her

concentration was okay and memory was intact. Her insight and

judgment were poor. Plaintiff reported that she was some better.

She also reported applying for jobs, and that she was not being

hired because she blacked out at her last job. Her medications were

continued. (Tr. 233). Dr. Hammond’s last treatment note is dated

February 27, 2008. Dr. Hammond diagnosed Plaintiff with major

depression, panic disorder with agoraphobia, borderline IQ, obesity,

and hypothyroidism, and status post breast reduction, and assigned

a GAF of 50. Plaintiff’s concentration was good and memory was

intact. Her insight was poor, and her judgment was okay. Plaintiff

reported that she stays home with her handicapped son, that she

assisted her mother following surgery, and that she babysits her

step-grandchild. She reported that she is up every two hours to eat

and drink. Dr. Hammond recommended that Plaintiff continue her

medications, but switch Celexa to Prozac17 for weight loss. (Tr.

232). 

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 19 of 40
20

1. Whether the ALJ erred in finding that

Plaintiff could return to her past

relevant work and in failing to fully

explain his decision.

Plaintiff contends that the ALJ erred by failing to explain his

decision as required by Social Security Ruling 82-62: Titles II and

XVI: A Disability Claimant’s Capacity to Do Past Relevant Work, In

General (“SSR 82-62"), and by rejecting the opinion of the

vocational expert regarding Plaintiff’s past relevant work.

Plaintiff also asserts that the ALJ erred in failing to discuss a

“prior decision of the Social Security Administration personnel”

that Plaintiff could not return to her prior work; and that he erred

in failing to explain how Plaintiff can perform her past relevant

work in light of Dr. Hammond’s opinion that Plaintiff has a marked

limitation in responding to customary work pressures. 

Defendant asserts that Plaintiff’s contention that the ALJ

failed to develop and explain his decision that Plaintiff could

perform her past relevant work is without legal support, as it is

the Plaintiff’s burden to prove she is not capable of performing her

past work and she failed to do so. Defendant also argues that the

record includes detailed descriptions of Plaintiff’s past work,

provided by Plaintiff, and that the ALJ compared Plaintiff’s RFC to

those demands in making his determination.

In determining that Plaintiff is not disabled based on her

ability to perform past relevant work, the ALJ first set forth

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 20 of 40
21

Plaintiff’s RFC as follows:

After careful consideration of the entire record, the

undersigned finds that the claimant has the mental (and

physical) residual functional capacity to perform

semiskilled work activities over a wide range of

exertional levels. Additionally, the undersigned finds

that the claimant’s mental impairment(s) pose only mild

to minimally moderate limitations in her ability to

function, however, contact with the general public should

not be a usual job duty. 

(Tr. 21).

In making this determination, the ALJ assigned determinative

weight to the opinion of Dr. Hammond, stating as follows:

As for the opinion evidence, the undersigned has assigned

determinative weight to the findings and opinion

expressed by Dr. Hammond, based on residual functional

capacity assessments, observations and her medical

expertise as noted herein. It is important to note that

a mental residual functional capacity by Dr. Hammond in

August 2007 estimated that the claimant’s deficiencies

primarily ranged between “none” to “moderate” with only

her ability to respond appropriately to customary work

pressures as “marked.” . . . On the last date of record,

February 27, 2008, Dr. Hammond noted that the claimant

carried a GAF of 50, which in many instances represents

an individual who has seriously [sic] symptoms; is

suicidal; and unemployed. Dr. Hammond noted that the

claimant had done much better when she was working, and

suggested that the claimant needed to get a job. The

undersigned recognized that Dr. Hammond has had an

established relationship with the claimant over the years

and is qualified to evaluate the claimant’s complaint and

form conclusions regarding her symptoms, diagnosis, and

resulting limitations. The undersigned also notes that

Dr. Hammond’s, opinion is supported by the findings of

the State Agency psychologist who, after reviewing the

record as it existed in November 2005 also determined

that the claimant retained the residual functional

capacity for substantial gainful activity. It is

noteworthy that Counsel argues that Dr. Hammond’s office

notes establish that the claimant has not been

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 21 of 40
22

functioning at mental levels that would permit

substantial gainful employment; however it is worth

reiterating that Dr. Hammond opined in her office note

dated March 8, 2007, that the claimant needed to get a

job and not stay home in bed. 

(Tr. 24-25). The ALJ then found Plaintiff capable of performing

her past work as follows:

The claimant is capable to performing past relevant work

as utility worker for the school system. This work does

not require the performance of work-related activities

precluded by the claimant’s residual functional capacity

. . . . An exception here is that contact with the

general public should not be a primary job duty. As

such, claimant cannot return to her job as a school bus

driver.

Claimant reported that she worked in many other different

positions while employed with the public school system,

including an office worker, bus inspector helper, and

mechanic helper. Claimant has a successful work history

from 1985 to 2005. In comparing the claimant’s residual

functional capacity with the physical and mental demands

of this work the undersigned finds that the claimant is

able to perform it as actually performed. The

undersigned emphasizes the fact that the claimant wanted

disability does not entitle her to disability. Thus,

there is no need for a vocational expert since claimant

can do her past relevant work. 

(Tr. 26).

In this case, Plaintiff asserts that the ALJ determined that

she could return to her past relevant work as a utility worker;

however, the VE did not identify the utility worker as her past

relevant work. Instead, he listed her past relevant work as a

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 22 of 40
18The VE stated that “I believe it would best be reflected as

a school bus driver, which would be medium in exertional level

and semi-skilled with an SVP of a 4. And that of a janitor,

which is also medium in exertional level, and unskilled with an

SVP of 2.” 

(Tr. 276). 

23

school bus driver and as a janitor18. The undersigned finds that

while the VE did not expressly mention the “utility worker,” he did

list two of the jobs, namely the school bus driver and the janitor,

that Plaintiff testified she performed as a utility worker. During

the administrative hearing, Plaintiff testified that while employed

as a utility worker for the school system, she worked as a janitor

at a high school from 1985 to 1997, and that she drove buses from

1997 until her separation in 2005. (Tr. 254-255). According to

Plaintiff, while assigned to the transportation department, she was

sometimes rotated from driving buses to duties such as an office

worker, a mechanic’s helper and a an inspector’s helper. (Tr.

257). The ALJ expressly held that Plaintiff could return to the

utility job, except that she was precluded from driving school

buses. Because Plaintiff identified the janitorial job as one of

the jobs that she performed for over ten years in her role as a

utility worker, and the VE included it in Plaintiff’s past relevant

work, the undersigned finds that implicit in the ALJ’s finding that

Plaintiff could return as a utility worker, except for the school

bus driver position, was a finding that she could perform the

janitorial job; thus, the ALJ’s finding does not conflict with the

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 23 of 40
19In determining the requirements of past work, SSR 82-62

states that:

The claimant is the primary source for vocational

documentation, and statements by the claimant regarding

past work are generally sufficient for determining the

skill level, exertional demands and nonexertional

demands of such work. . . . 

Sufficient documentation will be obtained to support

the decision. Any case requiring consideration of PRW

will contain enough information on past work to permit

a decision as to the individual's ability to return to

such past work (or to do other work). . . .

24

VE’s testimony. 

Plaintiff relies on Social Security Ruling (“SSR”) 82-

6219, 1982 SSR LEXIS 27 to assert that the ALJ failed to

explain his decision that Plaintiff could perform her past

relevant work. While SSR 82-62 requires in cases involving a

mental or physical impairment that care “be taken to obtain a

precise description of the particular job duties” at issue,

the ruling only requires that sufficient documentation be

obtained “to permit a decision as to the individual’s ability

to return to such past work.” It is the plaintiff’s

responsibility to demonstrate an inability to return to her

past relevant work. Lucas v. Sullivan, 918 F. 2d 1567 (llth

Cir. 1990) 

As a threshold matter, Plaintiff has pointed to nothing in the

record which indicates any requirements of the janitorial job that

she is unable to perform. Nobles v. Astrue, 2009 U.S. Dist.

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 24 of 40
25

LEXIS 9389 (M.D. Ala. Feb. 5, 2009)(where the claimant failed to

identify any requirements of past relevant work that she was unable

to perform, she did not meet burden of demonstrating an inability

to return to her past relevant work.) Moreover, the undersigned

finds that the ALJ adequately explained his determination that

Plaintiff could return to her previous work as a utility worker,

excluding the job of school bus driver. A review of the record

indicates that the vocational documentation required by SSR 82-62

was provided by Plaintiff herself, in work history reports she

submitted with her applications and in testimony before the ALJ.

(Tr. 73-74, 107, 254-258). In finding that Plaintiff could return

to her past work, the ALJ correctly referenced that documentation,

and included in his decision a finding of fact as the individual’s

RFC. He also made the required finding of fact as to the physical

and mental demands of Plaintiff’s past work in finding that her

past work “does not require the performance of work-related

activities precluded by the claimant’s residual functional

capacity,” specifically excluding from that PRW the duties in her

past job as a school bus driver, which clearly acknowledges his

consideration of all the demands of Plaintiff’s past work as

utilities worker, including that of a janitor. 

With respect to Plaintiff’s assertion that the ALJ erred in

failing to discuss a “prior decision of the Social Security

Administration personnel,” it is clear that the ALJ was not

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 25 of 40
26

required to do so. An ALJ does not have to refer to each and every

piece of evidence in his decision so long as it is supported by

substantial evidence. See, e.g., Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir. 2005). In this case, there is every indication that the ALJ’s

determination that Plaintiff can return to her past work is supported by

substantial evidence. The fact that he did not specifically address an

opinion expressed in a Vocational Rehabilitation form in making that

determination is of no matter. 

Finally, Plaintiff argues that the ALJ erred in failing to

explain how he assigned determinative weight to Dr. Hammond’s

opinion, which includes a finding that Plaintiff is markedly

limited in her ability to respond to customary work pressures, yet

also found that Plaintiff can return to her prior work. The ALJ

assigned “determinative” weight not just to the Mental Residual

Functional Capacity completed by Dr. Hammond, but also to “the

findings and opinion expressed by Dr. Hammond, based on residual

functional capacity assessments, observations and her medical

expertise.” (Tr. 24). It is abundantly clear from a review of the

record that Dr. Hammond is of the opinion that Plaintiff not only

can return to work, but that she should do so. In treatment notes

dated December 4, 2006, Dr. Hammond stated that she had last seen

Plaintiff in 2003, when she had done well in therapy and was coping

well, but that Plaintiff had not done as well since she stopped

therapy and changed medications. (Tr. 195). In March 2007

treatment notes, Dr. Hammond observed that Plaintiff was not taking

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 26 of 40
27

responsibility for her life, and that she needed a job, or regular

activity. She recommended that Plaintiff get a job and see a

therapist. (Tr. 237). Two months later, in May 2007, Dr. Hammond

noted that Plaintiff was doing better since being told that she had

to take responsibility for herself.(Tr. 236). 

In August 2007, Dr. Hammond completed the Mental Residual

Functional Capacity, wherein she assigned Plaintiff a marked

limitation in her ability to respond to customary work pressures.

Contrary to Plaintiff’s position that this finding deems Plaintiff

unable to return to her previous work, such is not the case. Dr.

Hammond also opined that Plaintiff had only moderate limitations in

her ability to complete work-related activities in a normal workday

or workweek, mild limitations in her ability to respond

appropriately to co-workers, and no restrictions in her activities

of daily living and no difficulty in social functioning. It is

also noteworthy that Dr. Hammond opined that these limitations had

not lasted 12 months and were not expected to last 12 months. (Tr.

222-223). 

The ALJ complied with the requirements of SSR 82-62 by

correctly determining that Plaintiff retains the RFC to meet the

physical and mental demands of her past work. He reviewed the

information Plaintiff presented to the Social Security

Administration about the demands of her past work during her

applications process and her testimony about the demands of that

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 27 of 40
28

work, and found that Plaintiff’s RFC would permit her to return to

her past work. He clearly stated that her RFC would allow her to

return to her job as a utility worker, except she could not drive

a school bus. Accordingly, substantial weight supports the ALJ’s

decision.

2. Whether the ALJ erred in failing to assign controlling

weight, or any weight, to the opinion of Plaintiff’s

treating physician, Dr. Charla Evans, M.D.

Plaintiff argues that the ALJ erred in failing to give

controlling weight to the opinion of Dr. Evans regarding

Plaintiff’s inability to stand or walk more than one hour in an

eight hour day and the necessity that she frequently elevate her

legs while sitting. According to Plaintiff, because Dr. Evans was

Plaintiff’s treating physician, her opinion is entitled to

controlling weight pursuant to Social Security Ruling 96-5p: Titles II

and XVI: Giving Controlling Weight to Treating Medical Source Opinions

(“SSR 96-2p”) and 20 CFR § 404.1527(d). Defendant responds that the

ALJ considered all the medical opinions and rejected the opinion of

Dr. Evans because it was inconsistent with her own treatment notes

and was conclusory.

In considering the opinion of Dr. Evans, the ALJ stated that:

[N]o weight has been assigned to Dr. Charla Evans, who in

August 2006 assigned mental ratings that indicated the

claimant was incapable of functioning at acceptable

levels secondary to a mental disorder(s). . . . First,

the physician noted that she is not a psychiatrist.

Second, Dr. Evans’ records for the most part, are

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 28 of 40
29

conclusory and are not supported by the overall objective

medical evidence. Third, her opinion is contradicted by

her own office notes. . . . Last, Dr. Evans’ opinion is

undermined by credible substantial evidence and

claimant’s admission of her activities of daily living.

Additionally, at the hearing, claimant testified she had

not seen Dr. Evans for approximately one year. . . 

(Tr. 25). As noted supra, the ALJ’s decision not to accord Dr.

Evans’s opinion any weight is not error. It is well settled that

“[t]he opinion of a treating physician is entitled to substantial

weight unless good cause exists for not heeding the treating

physician’s diagnosis.” Edwards v. Sullivan, 937 F.2d 580, 583

(llth Cir. 1991). See, e.g., Crawford v. Commissioner of Social

Security, 363 F.3d 1155, 1159-1160 (11th Cir. 2004); Phillips v.

Barnhart, 357 F.3d 1232, 1240-1241 (11th Cir. 2004); Lewis v.

Callahan, 125 F.3d 1436, 1439-1441 (11th Cir. 1997); 20 C.F.R. §

404.1527(d)(2). “[G]ood cause exists when the (1) treating

physician’s opinion was not bolstered by the evidence; (2) evidence

supported a contrary finding; or (3) treating physician’s opinion

was conclusory or inconsistent with the doctor’s own medical

records.” Phillips, 357 F.3d at 1240-1241 (citing to Lewis, 125

F.3d at 1440). See also Edwards v. Sullivan, 937 F.2d 580 (11th

Cir. 1991) (holding that the ALJ properly discounted a treating

physician’s report where the physician was unsure of the accuracy

of his findings and statements). If the ALJ disregards or accords

less weight to the opinion of a treating physician, the ALJ must

clearly articulate his reasons, and the failure to do so is

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 29 of 40
30

reversible error. MacGregor v. Bowen, 786 F.2d 1050, 1053 (llth

Cir. 1986). 

A review of the record reflects that Dr. Evans’s opinion was

not bolstered by the evidence, was conclusory, and was inconsistent

with her medical records. In fact, Dr. Evans’s Physical Capacities

Evaluation is also internally inconsistent. She states Plaintiff

cannot sit/stand/walk at all, but then opines that she can sit for

two hours total and stand/walk one hour total in an eight-hour

workday. Dr. Evans’s opinion also conflicts with her treatment

notes and with other medical records. In August 2005, she

diagnosed Plaintiff with major depression and panic disorder

stating that her condition should improve in three to four months,

but in August 2006, she stated the her limitations stemming from

her mental disorder had lasted for 12 months, or was expected to

last for 12 months. Dr. Hammond opined that her mental limitations

had not lasted 12 months, and could not be expected to last 12

months. Additionally, Dr. Evans opined that Plaintiff must elevate

her feet when sitting, but nowhere in her treatment records, or in

the opinions of any other medical source, has she been instructed

to elevate her feet when sitting. Finally, while Dr. Evans limits

Plaintiff to no fine manipulation, nowhere in her treatment

records, or those of any other medical source, are limitations

placed on Plaintiff’s ability to do fine manipulation. Based upon

the record evidence, the undersigned finds that the ALJ did not err

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 30 of 40
31

in assigning no weight to the opinion of Dr. Evans, in that her

opinion is inconsistent with the record as a whole, is inconsistent

with her own medical records, and is not bolstered by the evidence

as a whole. 

3. Whether the ALJ erred by failing to perform a functionby-function analysis of Plaintiff’s limitations in

assessing her RFC in exertional terms. 

Plaintiff argues that the ALJ erred in failing to perform a

function-by-function analysis of Plaintiff’s limitations in

assessing her RFC in exertional terms, as required by 20 C.F.R. §§

404.1521(b)(1) and SSR 96-8p. 

“The RFC assessment must first identify the individual's

functional limitations or restrictions and assess ... her workrelated abilities on a function by function basis . . . . Only

after that may RFC be expressed in terms of exertional levels of

work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p,

1996 WL 374184 (S.S.A. 1996). In Green v. SSA, 223 Fed. Appx. 915,

2007 U.S. App. LEXIS 10121 (llth Cir. 2007), the Eleventh Circuit

addressed a plaintiff’s claim that the ALJ had erred in determining

her RFC because he discredited her doctor’s assessment and in the

absence of the doctor’s assessment, there was purportedly nothing

in the record to support the ALJ’s RFC conclusion. In rejecting the

plaintiff’s claim, the Court found that: 

[o]nce the ALJ determined that no weight could be placed

on Dr. Bryant’s opinion of [the claimant]’s limitations,

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 31 of 40
32

the only documentary evidence that remained was the

office visit records from Dr. Bryant and Dr. Ross that

indicated that she was managing her respiration problems

well, that she had controlled her hypertension, and that

her pain could be treated with over the counter

medication. Thus, substantial evidence supports the

ALJ’s determination that [the claimant] could perform

light work.

(Id. at 924.) See also Freeman v. Barnhart, 220 Fed. Appx. 957;

2007 U.S. App. LEXIS 6878 (llth Cir. 2007). 

A review of the record indicates that there are very few

treatment notes related to physical limitations, and that the one

record that includes an opinion of Plaintiff’s exertional

limitations is that of Dr. Evans, in a Physical Residual Functional

Capacity dated August 11, 2006. In setting forth his finding of

Plaintiff’s RFC, the ALJ stated that:

[N]o weight has been assigned to Dr. Charla Evans, who in

August 2006 assigned mental ratings that indicated the

claimant was incapable of functioning at acceptable

levels secondary to a mental disorder(s) . . . . First,

the physician noted that she is not a psychiatrist.

Second, Dr. Evans’ records for the most part, are

conclusory and are not supported by the overall objective

medical evidence. Third, her opinion is contradicted by

her own office notes . . . . Last, Dr. Evans’ opinion is

undermined by credible substantial evidence and

claimant’s admission of her activities of daily living.

Additionally, at the hearing, claimant testified she had

not seen Dr. Evans for approximately one year, after the

physician left her group practice. 

(Tr. 25). Absent this opinion, which the ALJ correctly rejected,

the medical evidence falls far short of any indication that

Plaintiff experienced exertional limitations that would impact her

ability to perform work at any exertional level. For example, Dr.

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 32 of 40
33

Rutland noted that Plaintiff ambulated briskly, and got on and off

the exam table without help. He also noted that Plaintiff’s

straight leg raising was negative bilaterally, and she had 5/5

strength bilaterally in the upper and lower extremities in all

major muscle groups. Plaintiff’s sensory exam was normal, and her

reflexes were 2+ and symmetric in bilateral upper and lower

extremities. While Dr. Rutland diagnosed Plaintiff with anxiety

and depression, hypertension and arthritis of her cervical spine,

he did not place any limitations on Plaintiff’s ability to perform

any physical activities, and noted that the majority of Plaintiff’s

limitations appeared to be psychiatric. (Tr. 148-152).

Likewise, the treatment notes from Northside Clinic document

Plaintiff’s complaints of low back pain, but there is no indication

that she experiences any physical limitations. (Tr. 207-210). In

addition, Dr. Newman completed a form in November 2006 wherein he

opines that Plaintiff’s work restrictions are related to her panic

disorder, anxiety, and major depression, but he does not mention

any physical impairments. (Tr. 289-290). Finally, in January and

February 2007 treatment notes, Dr. Jimenez reports a normal

physical exam except for an ulcer on Plaintiff’s tongue. (Tr.

217). 

Accordingly, while the ALJ could have been more specific and

explicit in his findings, a review of the record reflects that he

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 33 of 40
34

complied with 96-8p by discussing Plaintiff’s lack of functional

limitations and then proceeding to find that she was able to

perform at all exertional levels. See Freeman v. Barnhart, 220 Fed.

Appx. 957, 2007 U.S. App. LEXIS 6878 (llth Cir. 2007). Thus, the

ALJ’s finding that the medical records did not demonstrate physical

limitations that would preclude Plaintiff’s ability to perform

unskilled work at all exertion levels is supported by substantial

evidence. 

In addition to the medical evidence, the ALJ pointed to the

wide range of daily activities Plaintiff reported just after filing

her application for benefits, such as housecleaning, cooking, doing

laundry, using a computer, taking classes online, caring for a

special-needs son and post-surgery parent simultaneously,

babysitting a grand baby and going fishing. Moreover, as noted

supra, the VE identified Plaintiff’s janitorial job as being at the

medium level of exertion, and the record is devoid of any plausible

evidence which demonstrates that Plaintiff cannot perform work at

that level. Thus, Plaintiff has not established that the ALJ erred

in establishing her RFC. 

4. Whether the ALJ erred by failing to consider the

impact of Plaintiff’s morbid obesity on her

residual functional capacity.

Plaintiff argues that the ALJ erred in failing to discuss

Plaintiff’s obesity or its impact on her ability to perform basic

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 34 of 40
35

work activities. Defendant argues that Plaintiff properly

considered Plaintiff’s obesity in determining her RFC, as required

by Social Security Ruling 02-1p: Titles II and XVI: Evaluation of

Obesity (“SSR 02-1p”), and that Plaintiff has failed to point to

evidence of a significant impact on Plaintiff’s ability to perform

a basic work activity resulting from her obesity.

SSR 02-1p requires that the ALJ consider the effects of

obesity at steps three and four when combined with other

impairments. In assigning Plaintiff an RFC, the ALJ considered

Plaintiff’s obesity as follows:

Moreover, while the obesity listing has been eliminated, there

is evidence that the claimant was obese prior to her alleged

onset of disability. Therefore, her obesity has been a

longstanding problem with which she has successfully worked in

the past without significant difficulty. The assessment by

Dr. Hammond revealed that claimant was morbidly obese, but was

not exercising; was not eating healthy; and wanted disability.

(Tr. 26). As a threshold matter, it is clear that the ALJ

considered Plaintiff’s obesity in determining her RFC. 20 C.F.R.

§§ 405.1545(a)(2) and 416.945(a)(2) provide that an ALJ will

consider even medically determinable impairments that are not

severe in assessing a Plaintiff’s RFC. In this case, Plaintiff did

not allege obesity as an impairment in her application for

benefits, and did not testify that she experienced any limitations

as a result of obesity. Additionally, none of Plaintiff’s

physicians identified any functional limitations resulting from her

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 35 of 40
36

obesity. Notwithstanding this lack of record evidence, the ALJ

properly considered Plaintiff’s obesity, in conjunction with her

other impairments, in determining her RFC.

5. Whether the ALJ erred by finding that

Plaintiff’s hypertension, cervical arthritis,

obesity and edema are not severe impairments.

Plaintiff argues that her hypertension, cervical arthritis,

obesity and edema are severe impairments in that they significantly

limit her ability to do basic work activities. According to

Plaintiff, the medical record documents a longitudinal history of

treatment for these impairments. Defendant argues that the record

does not support a finding that these impairments are severe within

the meaning of the Act, and that Plaintiff failed to meet her

burden of showing that they had more than a minimal effect on her

ability to do basic work activities.

 In finding that these impairments are not severe, the ALJ

stated the following:

The evidence also documents treatment for high blood pressure,

however, this condition has not been determined to be a

disabling impairment per treating physician at Exhibit 19F. .

. . 

[C]laimant alleges that hip pain limits her capacity to work,

however, it has not been found that this impairment causes

more than minimal limitation in her ability to perform basic

work activities. Consequently, this impairment cannot be

considered severe enough to cause any significant functional

restrictions per SSR 96-4p. . . . 

A consultative evaluation by Travis Rutland, M.D., on November

19, 2005, concluded that the majority of the claimant’s

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 36 of 40
37

limitations appeared to be of a psychiatric nature, however,

he acknowledged an additional diagnosis of hypertension. . .

. 

[T]here is evidence that the claimant was obese prior to her

alleged onset of disability. Therefore, her obesity has been

a longstanding problem with which she has successfully worked

in the past without significant difficulty. 

(Tr. 19, 20, 22, 26). 

At the second step of the sequential evaluation process, the

ALJ is to “consider the medical severity of [the claimant's]

impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). A “severe”

impairment is one which “significantly limits your physical or

mental ability to do basic work activities.” 20 C.F.R. § 404.1520

©. The Eleventh Circuit has held that a claimant’s impairment may

be considered “not severe” only if it is a slight abnormality which

has such a minimal effect on he or she [sic], that it is not

expected to interfere with the ability to work, regardless of age,

education or work experience. See, e.g., Brady v. Heckler, 724

F.2d 914, 922 (11th Cir. 1984). In McDaniel v. Bowen, 800 F.2d 1026

(11th Cir. 1986), the Eleventh Circuit clarified the severity

determination:

[a]t step two of § 404.1520 and § 416.920 a claimant's

impairment is determined to be either severe or not

severe. Step two is a threshold inquiry. It allows only

claims based on the most trivial impairments to be

rejected. The claimant's burden at step two is mild. An

impairment is not severe only if the abnormality is so

slight and its effect so minimal that it would clearly

not be expected to interfere with the individual's

ability to work, irrespective of age, education or work

experience. Claimant need show only that her impairment

is not so slight and its effect is not so minimal.

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 37 of 40
20See also SSR 96-3p Titles II and XVI: Considering

Allegations of Pain and Other Symptoms in Determining Whether a

Medically Determinable Impairment Is Severe,1996 WL 374181, *1-2.

38

Id. at 1031. If an impairment causes only mild effects on a

claimant’s ability to work, or is amenable to medical treatment, it

may be not severe. See Bridges v. Bowen, 815 F.2d 622, 625 (11th

Cir. 1987). Thus, a claimant bears the burden of proving that an

impairment is severe and more than a mere slight abnormality.

Brady, 724 F.2d at 920.20

In this case, Plaintiff has failed to carry her burden of

showing that her hypertension, cervical arthritis, obesity and

edema significantly limit her ability to do basic work activities.

It is noted at the outset that Plaintiff did not allege any of

these impairments, other than hypertension, as the basis for her

disability when she initially filed her application for benefits.

(Tr. 72). It is further noted that Plaintiff testified that she

was unable to work due to edema, panic and anxiety attacks and

depression, without any mention of hypertension, cervical arthritis

or obesity. (Tr. 260).

Additionally, the medical record does not support her argument

that these impairments result in more than a slight abnormality.

For example, Dr. Rutland stated in November 2005 that Plaintiff was

mildly obese, but noted that she ambulated “briskly” and that she

needed no assistance getting on and off the examination table.

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 38 of 40
39

While he diagnosed Plaintiff with arthritis of her cervical spine,

he noted that the majority of her limitations appeared to be

psychiatric. (Tr. 148-152). In December 2005, Dr. Evans diagnosed

Plaintiff with osteoarthritis in her neck and hypertension, but did

not indicate that Plaintiff is limited by either. (Tr. 161-162).

In the next treatment note, in April 2006, Plaintiff complained

only of low back pain, and Dr. Evans does not even list

hypertension, cervical arthritis, obesity or edema as diagnoses,

much less indicate any limitations attributed to those impairments.

(Tr. 159-160). In fact, except for a diagnosis of obesity in June

2006, and diagnoses of obesity and hypertension in October 2006,

Dr. Evans’s treatment notes through November 2006 neither list

hypertension, cervical arthritis, obesity or edema as diagnoses,

nor assign any restrictions attributable to those impairments.

(Tr. 153-158, 207-212). 

Based upon the record evidence, the undersigned finds that

Plaintiff has failed to show that her hypertension, cervical

arthritis, obesity or edema significantly limit her ability to do

basic work activities. Accordingly, the ALJ’s failure to find

these impairments severe is not error, and substantial evidence

supports his decision. 

V. Conclusion

For the reasons set forth, and upon careful consideration of

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 39 of 40
the administrative record, oral arguments, and memoranda of the

parties, it is ordered that the decision of the Commissioner of

Social Security, denying Plaintiff’s claim for disability insurance

benefits, is due to be AFFIRMED.

 DONE this 22ND day of March, 2010.

 /s/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00596-B Document 17 Filed 03/23/10 Page 40 of 40