IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TONY LAMAR MAYE, ) 

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 04-00781-BH-B

)

JO ANNE B. BARNHART, )

Commissioner of )

Social Security, )

)

Defendant. )

REPORT AND RECOMMENDATION

Plaintiff Tony Lamar Maye (“Plaintiff”) brings this action

seeking judicial review of a final decision of the Commissioner

denying his claim for disability insurance and supplemental

security income benefits under Titles II and XVI of the Social

Security Act (“the Act”), 42 U.S.C. §§ 401-433 and 1381-1383(c).

This action was referred to the undersigned Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Oral argument was held on October 31, 2005. Upon careful

consideration of the record, the undersigned respectfully

recommends that the decision of the Commissioner be AFFIRMED.

I. Procedural History

During April and May, 1998, Plaintiff protectively filed

applications for supplemental security income benefits and

disability insurance benefits, alleging that he has been disabled

since December 31, 1997 due to hip, groin and lower back pain.

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The ALJ also completed a psychiatric review technique form finding that

while Plaintiff’s mental impairment included the presence of an affective

disorder and a history of depression, he did not meet Listing 12.04; and that

he has slight restriction of daily activities and maintaining social

functioning, but no other deficiencies or limitations. (Id. at 126-128).

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(Tr. 106-109, 166-169, 218, 554-558). Plaintiff’s initial

applications were denied and he filed a Request for Hearing before

an Administrative Law Judge (“ALJ”). (Id. at 106-112, 138-143,

559-568). ALJ Glay E. Maggard (“ALJ Maggard”) conducted a hearing

on March 16, 1999, which was attended by Plaintiff, his

representative, a witness on his behalf, and James Cowart, a

vocational expert. (Id. at 42-70). On August 12, 1999, ALJ

Maggard entered a decision wherein he found that Plaintiff is not

disabled as he can perform his past relevant work (“PRW”).1

 (Id.

at 113-125). The Appeals Council (“AC”) reviewed the 1999 decision

and on May 11, 2001, remanded the case for further administrative

proceedings. (Id. at 155-158). 

A supplemental hearing was conducted by ALJ Maggard on January

3, 2002, and was attended by Plaintiff, her representative and

Barry Murphy, a vocational expert. (Id. at 71-105). On March 20,

2002, ALJ Maggard issued an unfavorable decision finding that

Plaintiff retained the residual functional capacity (“RFC”) to

perform light work activity not entailing more than occasional

bending, squatting, crawling or climbing; and not requiring lifting

more than 25 pounds frequently, carrying more than 20 pounds

frequently, or sitting, standing or walking more than 1 hour each

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at one time, working in unprotected heights and/or concentrated

exposure to moving machinery or driving an automobile. (Tr. 20-

31). The AC denied Plaintiff’s request for review of the ALJ’s

decision, making it the final decision of the Commissioner. (Id.

at 10-12). 20 C.F.R. §§ 404.981, 416.1481. 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).

II. Background Facts

Plaintiff was born on December 2, 1971 and was 30 years old at

the time of the administrative hearing. (Tr. 166, 554). Plaintiff

has an 11th grade education and PRW as a laborer, substitute bus

driver, janitor and security guard. (Id. at 47, 67, 224, 233).

Plaintiff last worked in January 1998 as a security guard. (Id. at

47). According to Plaintiff, he was laid off from this job due to

cutbacks. (Id. at 53). Plaintiff received unemployment benefits

for 6 months thereafter, and in doing so, certified that he was

able to work up until July 1998. (Id. at 52-53, 56). 

At the March 16, 1999 hearing, Plaintiff testified that he has

problems with his pelvic bone/groin area due to a 1990 football

injury, and that over time, it has gotten worse. (Id. at 47-51,

53). He testified that nothing happened to worsen the condition,

but that his bone “each year [] seemed to get bigger and longer and

longer.” (Tr. 54). According to Plaintiff, in February/March

1998, he saw Dr. Charles Roth for his condition, and in April 1998,

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he sought treatment from the Stanton Road Clinic. (Id. at 55-56).

Plaintiff also sought treatment at USA Orthopedic for this

condition, and following x-rays and CAT scans, in November 1998,

they removed a long piece of calcium on the bone which was pressing

on his nerves and causing pain. (Id. at 48-49). Plaintiff

testified that since surgery, he has had the same pain and is

constantly taking pain medicine and sleeping pills. (Id. at 49).

Plaintiff also indicated that he was still receiving treatment at

USA Orthopedic with physical therapy 3 times per week, to loosen

his muscles and strengthen his legs. (Id. at 49-50). Plaintiff

opined that the surgery made his condition worse temporarily, but

his doctors hope that they have given him enough radiation

treatment so that the bone formation will not return. (Id. at 58).

Plaintiff does not believe that the physical therapy is helping

because he has problems bending his legs (cannot put on

socks/shoes), his legs become stiff, and he has difficulty walking

up steps. (Tr. 50). According to Plaintiff, he walks with a

stick/cane, and his father built slanted steps on Plaintiff’s house

to assist him with his mobility. (Id.) 

Plaintiff testified that he can walk maybe 100-200 yards

without having to stop, but at that point, his legs become numb,

his thigh becomes tingly, and he needs to sit for about 5-10

minutes due to the pain. (Id. at 51). Plaintiff indicated that he

initially took Ibuprofen for his pain, but that in November 1998 he

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started taking Lortab, and that by February 1999 he was taking

Talwin, for relief of the pain. (Id. at 56). Plaintiff testified

that he has not received treatment for any other physical

conditions and does not have any other physical ailments that

create problems with his walking or standing. (Id. at 52).

Plaintiff did indicate, however, that he has received treatment

from the Mobile Mental Health Center (“MMHC”) for anxiety and

depression. (Id. at 52-53). According to Plaintiff, his last

visit was in June 1998, and he ceased treatment at MMHC because

they were pressuring him to participate in group therapy and he did

not wish to do so. (Tr. 52-53). 

Regarding his daily activities, Plaintiff testified that he

has a driver’s license and drives some, that he can put on his

pants/shirt but cannot put on his socks or tie his shoes, and that

he is able to do some cooking, but does not clean his house. (Id.

at 51-52, 57-58). 

Ida Barnes (“Barnes”), Plaintiff’s grandmother-in-law and next

door neighbor, testified that he lives less than 100 feet from her,

and that she sees him at least 3 times a day for meals, except when

he goes to Mobile. (Id. at 59-62). Barnes testified that

Plaintiff has problems coming up and down the trailer steps, that

he walks with a stiff limp in one leg, and that he has to

constantly move. (Id.) She also indicated that she does not

believe that the surgery eliminated Plaintiff’s pain, and that she

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According to Plaintiff, Dr. Wallace indicated that he needed an MRI;

however, he could not afford one.

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provided him with the money for his pain medication until she could

no longer afford to do so. (Id. at 62-65).

At the January 3, 2002 supplemental hearing, Plaintiff

testified that since March 1999, he has not been able to engage in

any employment, his living arrangements have remained the same and

he has had no income. (Id. at 77). He continues to have problems

with hip pain and it hurts for him to walk for long periods of

time. (Tr. 77-78). Plaintiff testified that he was receiving

treatment from USA but no longer does so because they told him that

they could not cut all of the bone formation out and could no

longer treat him until he obtained Medicaid or insurance. (Id. at

78). Accordingly, he sought treatment from Dr. Aquilino, and had

been seeing him, on and off, for approximately 11⁄2 years for high

blood pressure and pain in his hips. (Id. at 79). Plaintiff also

received treatment from Dr. Chowdherry, for about 1 year, for hip

pain and high blood pressure. (Id. at 80). According to

Plaintiff, Dr. Chowdherry referred Plaintiff him to Dr. Wallace, an

orthopedist, who told him that he has a large amount of scar tissue

and bone formation on his hip, and that Plaintiff needed surgery.2

(Id. at 80, 89-90). Plaintiff also saw Dr. Barnes after he

encountered problems urinating. (Id. at 81-82). According to

Plaintiff, a sugar level test for diabetes was performed and

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revealed a large amount of sugar spilling in his urine; thus, he

was placed on medication for same. (Tr. 81-82). 

Plaintiff also indicated that he has sought treatment in the

Monroe County Hospital emergency room for his pain, and has been

provided prescription pain pills (Ultram and Lortab) that help “so,

so.” (Id. at 82-83). He has also been prescribed Celebrex, which

he discontinued due to bleeding, Zoloft, and Norvasc for high blood

pressure. (Id. at 83). Plaintiff testified that his hip pain

causes the following limitations: he cannot bend, has to sit on his

left side, has to sleep on his left side, has to step with his left

leg first, constantly feels pain in his groin area upon walking,

can only walk about 50-60 yards without feeling pain and can only

sit for about 15 minutes without having to get up as his legs go

numb. (Id. at 83-84). According to Plaintiff, he takes 2-3 hot

baths daily and uses crutches/cane when he goes out to help relieve

his pain. (Id. at 84). He testified that he can lift/carry about

40 pounds, has no problems using his feet, has trouble bending when

it involves his hip and takes Ultram and Lortab for pain. (Id. at

92-93). Moreover, Plaintiff testified that in addition to his

physical impairments, his depression keeps him down all the time so

he does not feel like doing anything and cannot play with his

child. (Tr. 85). He also has trouble sleeping and has a lot of

nights where he does not sleep at all, maybe 1-3 times per week.

(Id. at 85-86). 

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In addressing Plaintiff’s appeal, the undersigned notes that Plaintiff

has not presented any issue with regard to any alleged mental impairment. 

Accordingly, while the undersigned has reviewed the entire record, reference

to Plaintiff’s mental health records will not be discussed herein, unless they

also include reference to Plaintiff’s physical complaints. Additionally,

Plaintiff has admitted that his mental impairment is not the reason he is

unable to work. (Id. at 201).

8

Regarding his daily activities, Plaintiff indicated that he

spends his day trying to read books/newspapers, watching

television, laying down and walking off and on trying to stay

loose. (Id. at 85). Plaintiff is able to cook a light meal and

wash a few dishes, but cannot do laundry as bending causes pain.

(Id. at 87). Plaintiff also indicated that he does not take his

son to school because that would be “rough;” however, he wakes him

up and makes sure that he is dressed properly and has his books

packed. (Id. at 88-89).

III. Issues On Appeal3

A. Whether the ALJ erred by failing to assign controlling weight

to the opinion of Plaintiff’s treating physician?

B. Whether the ALJ erred by finding that Plaintiff could perform

his PRW as a security guard when VE testimony limited him to

the performance of a sit/stand option job?

C. Whether the ALJ erred by failing to develop a full and fair

record regarding the vocational opportunities available to

Plaintiff in violation of SSR 00-4p?

IV. Analysis

A. Standard of Review

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

is a limited one. This Court’s review is limited to determining:

1) whether the decision of the Secretary is supported by substantial

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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).

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

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).4 A court

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

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) (stating 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,

courts 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. 1999).

B. Discussion

An individual who applies for Social Security disability

benefits or supplemental security income must prove their

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

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First, Plaintiff must prove that he has not engaged in substantial

gainful activity. Second, Plaintiff must prove that he has a severe

impairment or combination of impairments. Third, if Plaintiff proves that the

impairment or combination of impairments meets or equals a listed impairment,

then he is automatically found disabled regardless of age, education, or work

experience. If the Plaintiff cannot prevail at the third step, he must

proceed to the fourth step where he must prove an inability to perform his

past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986);

Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per curiam). 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. Jones, 810 F.2d at 1005. Once

Plaintiff meets this burden, the burden shifts to the Commissioner to prove at

this fifth step that Plaintiff is capable of engaging in another kind of

substantial gainful employment which exists in significant numbers in the

national economy, given his residual functional capacity, age, education, and

work history. Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). See

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

Commissioner can demonstrate that there are such jobs that the Plaintiff can

perform, the burden shifts back to the Plaintiff who must prove an inability

to perform those jobs, in order to be found disabled. Jones v. Apfel, 190

F.3d 1224, 1228 (11th Cir. 1999); Allen v. Sullivan, 880 F.2d 1200, 1201 (11th

Cir. 1989); Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing

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

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expected to last for a continuous period of not less than twelve

months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505(a),

416.905(a). The Social Security regulations provide a five-step

sequential evaluation process for determining if a claimant has

proven his or her disability.5

 20 C.F.R. §§ 404.1520, 416.920. 

In the case sub judice, substantial evidence supports the ALJ’s

decision. The evidence reflects that Plaintiff was treated by

Richard McGrew, M.D. (“Dr. McGrew”) in March 1998 for pain in his

right leg. (Tr. 276-284, 321). Plaintiff reported that he

initially injured his right leg in 1990 while playing football, and

that now he had a bone sticking out and causing his pain in his

right groin area. (Id.) An x-ray revealed an old fracture of the

right public ramus, with a nonunion and a questionable large

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osteochondroma projecting down almost to the skin surface. (Id.

at 278). Dr. McGrew diagnosed “[o]ld right fracture right pubic

ring with questionable large osteochondroma” and referred Plaintiff

for an orthopaedic evaluation. (Id. at 278-279). On March 10,

1998, Plaintiff underwent an orthopaedic evaluation performed by

orthopaedic specialist Charles A. Roth, M.D. (“Dr. Roth”). (Id. at

317-318). Dr. Roth’s examination revealed painless motion of the

hip, with extreme adduction, and a little tenderness over the

proximal adductor origin. (Id. at 318). Dr. Roth noted Plaintiff

was “very well muscled,” and that his neurological exam was intact

in the lower extremities. (Tr. 318). A CT scan of the pelvis

showed an apparent “myositis ossificans” involving the “right

proximal adductor brevis muscle[,]” consistent with an old avulsion

fracture; no acute fracture was noted. (Id. at 318, 320). On April

17, 1998, Tim Revels, M.D. (“Dr. Revels”) opined that Plaintiff was

disabled and unable to perform sedentary jobs, due to pain, and was

in urgent need of excision of the “mass” so he could become

gainfully employed. (Id. at 306).

On September 12, 1998, Plaintiff was seen at USA for evaluation

of pelvic mass. (Id. at 329). On October 27, 1998, Plaintiff was

seen at USA for chronic progressive pain, an inability to work,

intercourse leading to pain, right testicle removal and medications.

(Id. at 327, 376-377). Roentgenological findings revealed

thickening and irregularly of right pubic and ischial rami-slight

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deformity in pelvis. (Id. at 377). On November 4, 1998, Plaintiff

had his right groin heterotopic bone removed at USA by Mark Donald

Perry, M.D. (“Dr. Perry”). (Tr. 340-356). Upon discharge, he was

in good condition, had independent locomotion and was given a good

prognosis. (Id.) Dr. Perry noted that Plaintiff reported that the

mass inhibited him from walking long distances, participating in

physical activities and caused problems with sexual intercourse.

(Id. at 345). On January 13, 1999, Plaintiff presented to Dr. Perry

at USA for a postoperative follow-up. (Id. at 375). Dr. Perry’s

notes reflect that no keloid formed, but that he does have a firm

ridge in the adductor muscle; he was given pain and sleep medicine

and told to follow-up. (Id. at 375). 

On February 8, 1999, Plaintiff was evaluated by Andre Fontana,

M.D. (“Dr. Fontana”) at the State Agency’s request. (Id. at 357-

358). Plaintiff reported that he could live with the pain until

last year when he could no longer stand it, had surgical

intervention in 1998, physical therapy in 1990, and now his right

hip pain radiates down his entire right side. (Tr. 357). He added

that he has fallen on several occasions, has a painful range of hip

motion and complains of right arm pain to his fingers and right hand

with tingling, muscle weakness and decreased grip strength. (Id.)

He also complained of painful range of motion with his right

shoulder and reported that his entire left side wakes him up at

night and that he takes Ambien for relief. (Id.) Plaintiff also

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reported ambulating without assistance up to 100 yards, cooking and

driving occasionally. (Id.) His exam revealed 2+ deep tendon

reflexes except at biceps, triceps and brachial radials, normal

sensory and motor function, a minimally slightly weaker grip

strength on the right, good squatting, good toe/heel gait, straight

leg raising test 90 degrees sitting and 45 degrees on the right and

left in the supine position, mild hip pain, good range of motion of

the hip, range of motion of cervical spine is flexion 55, extension

30, lateral rotation 45 to right and 40 to left, flexion 25 to right

and 25 to left. (Id.) Dr. Fontana noted that Plaintiff was still

convalescing from surgery and while it is possible that he will

improve in future, at that time, he was limited to sedentary and

light activities (pelvis still healing). (Id. at 358). 

Additionally, Dr. Fontana completed a physical capacities

evaluation in which he concluded that Plaintiff could sit/walk/stand

for 1 hour each at a time; sit for a total of 8 hours per 8 hour

day; stand for a total of 6 hours per 8 hour day; walk for a total

of 4 hours per 8 hour day; lift up to 10 pounds continuously; lift

up to 25 pounds frequently; lift up to 50 pounds occasionally; and

never lift 51 pounds of more. (Tr. 359). He also found that

Plaintiff can carry up to 5 pounds continuously, 20 pounds

frequently, 25 pounds occasionally, and never 26 pounds or more.

(Id.) Plaintiff can use his right/left hands for simple grasping,

pushing/pulling and fine manipulation; and both his feet for

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repetitive movements. (Id.) Dr. Fontana concluded that Plaintiff

could occasionally bend, squat, crawl, climb; frequently reach; had

mild restrictions driving automotive equipment; total restrictions

with unprotected heights; and moderate restrictions against being

around moving machinery. (Id.) He found Plaintiff limited to light

and sedentary work. (Id.)

Treatment notes from Dr. Perry reflect that on February 10,

1999, Plaintiff reported that he was doing well in therapy, but

experienced pain once he got home. (Id. at 374). Plaintiff was

directed to continue in therapy. (Tr. 374). On February 24, 1999,

Plaintiff reported to Dr. Perry that he felt “very good” while in

physical therapy or while in a hot bathtub, and experienced

improvement for up to 1 hour after treatment; however, he would

stiffen up later. (Id. at 373). Thus, he did not feel that he was

making any improvement. (Id.) Dr. Perry noted that the fact that

Plaintiff loosen up for an hour indicated improvement and he

directed him to continue physical therapy. (Id.) On March 11,

1999, Dr. Perry, in a written communication to Plaintiff’s counsel,

opined that Plaintiff’s pre-operative condition did not involve

nerves or blood vessels, that his prognosis should involve

considerable relief of discomfort and that his ability to engage in

substantial gainful employment was dependent on his progress in

physical therapy. (Id. at 379). According to Dr. Perry, the

prognosis of Plaintiff’s bone should be “considerable relief of

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discomfort” as his physical therapy is providing good relief of

symptoms for up to 3 hours. (Id.) A status report from physical

therapy dated March 17, 1999 indicated that Plaintiff had decreased

pain and greater flexibility immediately following treatment, but

reported that he experienced only temporary relief. (Tr. 390). The

treatment notes also showed improvement of hip flexibility from 70-

85 degrees and hip adduction from 30-35 degrees, and that due to the

travel distance for appointments, Plaintiff was instructed to do his

stretches and strengthening exercises at home. (Id.) 

Treatment notes from George Russell, M.D. (“Dr. Russell”)

reflect that on March 18, 1999, Plaintiff reported to him that he

is doing somewhat better but does still complain of pain in his

right hip. (Id. at 389). Physical therapy was discontinued and

Plaintiff was directed to continue with strengthening exercises and

was given Ambien to help him sleep. (Id.) On April 20, 1999, Dr.

Perry noted that the radiographs showed no recurrence of Plaintiff’s

bone mass even though he reported episodic scrotal numbness present

but intermittent, that he is worse in the morning but feels very

good with warm shower or hot bath, and that he has pain with

adduction whether his hip is extended or flexed (about 20-25

degrees), but is nonpainful around his well-healed scar. (Id. at

388). He was assessed with fibrosis that is “improving” after

surgery and was placed on Naprosyn and given Lodine samples. (Id.)

On May 25, 1999, Dr. Russell saw Plaintiff for complaints of some

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pain with some dyspareunia – 10/10 at worst, but now 7/10; he

reports that he is able to perform but still has significant

pain/discomfort and was placed on Flexeril and Lortab. (Tr. 386).

On June 13, 1999, Plaintiff was seen by Dr. Russell for a follow up;

he was doing “fairly well” but still complained of some right hip

pain. (Id. at 385). He reported that he had recently tried to work

as a dispatcher with the Sheriff’s department but did not like the

job and thus quit. (Id.) His physical exam was unchanged, so he

was instructed to continue activities as tolerated and return on an

as needed basis. (Id.) 

On September 2, 1999, Plaintiff reported to Dr. Perry that he

had “popping” all the time and hurt. (Id.) Plaintiff was seen by

Dr. Perry at USA for follow-up on January 11, 2000, and complained

of right groin pain. (Id. at 382, 384, 526). Dr. Perry’s treatment

notes reflect that Plaintiff was able to ambulate with some pain,

and reported that he was unable to exercise his lower body due to

pain; however, he had not been doing stretching exercises at home.

(Tr. 382, 384, 526). The physical exam revealed minimally

tenderness to palpation over medial groin on right, a wound

completely healed, range of motion limited by stiffness; and his xrays show no recurrence of heterotopic ossification and a small

residual amount of it was noted in the obturator foramen. (Id.)

Impression was thigh pain, status post section of heterotopic

ossification, potentially related to impingement on the obturator

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nerve but unlikely. (Id.) It was further noted that Plaintiff

would be sent for an MRI when Medicaid came through. (Id.)

Plaintiff, however, did not keep his February appointment. (Id.)

From February 2000-January 15, 2002, Plaintiff was treated by

Stanley Barnes, M.D. (“Dr. Barnes”). (Id. at 391-392, 410, 549-

553). Dr. Barnes’ treatment notes of February 15, 2000 reflect that

Plaintiff was examined for right hip pain in the groin area. (Tr.

391-392, 410, 549-553). There were no clinical findings, and

Plaintiff was continued on his medications. (Id.) On April 11,

2000, Dr. Barnes completed a physical capacities evaluation form

wherein he concluded that Plaintiff could sit/stand/walk 2 hours at

one time, and could sit/stand/walk for a total of 2 hours in an 8

hour day; could occasionally lift/carry up to 10 pounds but never

more; could not use his right/left hands for simple grasping,

pushing, pulling or fine manipulation; could not use his feet for

repetitive action; could occasionally bend, squat, crawl, climb and

reach; and has moderate restrictions of activities relating to

unprotected heights, exposure to marked changes in temperature and

humidity, driving automotive equipment, exposure to dust, fumes or

gases. (Id. at 391).

Dr. Barnes’ May 3, 2000 treatment notes reflect that

Plaintiff’s blood pressure was elevated and his extremities showed

showed arthralgias, myalgias and evidence of arthritis in the right

shoulder and hip. (Id. at 410). He was diagnosed with

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osteoarthritis in right hip and hypertension and started on Ziac for

his blood pressure. (Id.) The notes for June 28, 2000 reflect that

Plaintiff’s blood pressure had improved, and that he complained of

abdominal pain and dark stools. (Id.) He was diagnosed with

abdominal pain and heme positive stools, and was given sample of

Axid, Ziac and Sonata. (Tr. 410). In December 2001, Dr. Barnes’

notes reflect that Plaintiff had not been in for treatment in over

1 year, and that he reported problems with urination, bloody stool

and pain in his groin. (Id. at 550). Dr. Barnes noted that

Plaintiff’s prostate was enlarged but not nodular, and diagnosed him

with possible benign prostrate hypertrophy, new onset diabetes and

rectal irradiation. (Id.) Dr. Barnes also noted that Plaintiff and

his family are overweight, and he gave him Cutivate for use in the

rectal area, Flomax and Prandin. (Id.)

From January 2001-April 2004, Plaintiff was seen by K.

Aquilino, M.D. (“Dr. Aquilino”) and Tri-County Uriah, on various

occasions for his diabetes, hypertension, shoulder and back pain,

and prostatitis. (Id. at 588-595, 650-672). Examinations were

unremarkable. (Id.) Plaintiff’s blood pressure was not elevated

and Dr. Aquilino opined that he did not have diabetes. (Tr. 588-

595, 656-670). Plaintiff was treated with Ultram and reported he

got some relief during the day from the pain. (Id.) During this

treatment, Plaintiff was given a number of medications including

Lortab, Ultram, Ziac, Cephalexin and Lincocin. (Id.)

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Mobile Infirmary Association records from March 28, 2001 and

May 18, 2001 reveal that Plaintiff presented to the ER for chronic

right hip/back pain and a recent infection of his prostrate with

claims of increased pain with ambulating and weight bearing

movement. (Id. at 527-546). He reported he was taking Celebrex,

Ziac, Levaquin, Lortab, Ultram and Darvocet (and “stomach

medication”), had no difficulty walking, had full range of movement

in his extremities and had no pedal edema. (Id.) An x-ray

performed on Plaintiff’s hip on March 28, 2001 was within normal

limits and showed no degenerative changes in the hip joint; however,

a notation was made of an old healed fracture of the right inferior

pubic ramus. (Id. at 534). Plaintiff was prescribed Venoporol,

Ultram, Zoloft and Hydrocodone. (Tr. 527-546). On May 18th, it was

noted that Plaintiff claimed that he was supposed to use crutches,

but he did not bring them. (Id. at 541, 545). He was assessed in

good condition upon discharge and was ambulatory. (Id.) Plaintiff

reported he had last taken pain medication 2 weeks before and that

he had not taken his hypertension medication in 2 days. (Id.)

On October 29, 2001, William A. Crotwell, III, M.D. (“Dr.

Crotwell”) conducted an orthopaedic evaluation of Plaintiff at the

request of the State Agency. (Id. at 465-466). Plaintiff

complained of right hip pain, pain radiating to right leg, and of

being unable to walk without crutches. (Id.) Dr. Crotwell’s

examination of Plaintiff revealed normal toe/heel walk; 2+ reflexes;

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20

normal sensory exam; 5/5 motor strength; 50% flexion and 40%

extension without tenderness/spasms; sitting straight leg raising

test at 90 degrees with no pain at all; negative bilateral lying hip

rotation. (Tr. 466). Dr. Crotwell noted that: with lying straight

leg raising test on the left, Plaintiff had increased pain with

plantar flexion at 90 degrees and decreased pain with dorsiflexion

and the pain was on the contralateral side; with right straight leg

raising test, he would fight the doctor by holding his leg with his

own muscles and when the leg was released he had increased pain at

80 degrees with plantar flexion and no change with dorsiflexion

which Dr. Crotwell opined was inconsistent. (Id.) He also noted

that Plaintiff’s calves were 16 inches and his thighs were

“tremendous quad and musculature” with right thigh measuring 3/8

inches larger than the left which Dr. Crotwell opined was “very

inconsistent[;]” x-rays of lumbar spine showed some very minimal

arthritis and x-ray of his hips was totally negative with respect

to arthritis. (Id.) Dr. Crotwell concluded that Plaintiff had very

little orthopaedic problems, was very muscular, had extremely large

quads for a person on crutches and found it very difficult to

believe he was on any crutches at all. (Id.) He opined that

Plaintiff could carry out moderate, light and sedentary work. (Id.)

Plaintiff was diagnosed with spur of right superior rami and “very

little orthopaedic problems.” (Id.) 

Dr. Crotwell also completed a physical capacities evaluation

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21

on this date, in which he found Plaintiff could sit/stand/walk for

a total of 2 hours at one time; sit/stand/walk for a total of 8

hours in an 8 hour workday; lift up to 50 pounds frequently, 25

pounds continuously and up to 100 pounds occasionally; carry up to

25 pounds frequently, 20 pounds continuously and up to 50 pounds

occasionally but never 51 pounds or more; frequently bend, squat,

crawl, climb and reach continuously; use both hands for simple

grasping, pushing and pulling and fine manipulation; use feet for

repetitive movements; had moderate restrictions with unprotected

heights, mild restriction being around moving machinery and driving

automotive equipment and no other restrictions; and could perform

“moderate, light and sedentary work.” (Tr. 467). 

On January 7, 2002, examining physician Milton A. Wallace, Jr.,

M.D. (“Dr. Wallace”) indicated in a letter to Plaintiff’s counsel,

that x-rays after his surgery showed excellent results, that there

was no evidence of recurrent heterotopic bone and that following

surgery, his range of motion was “quite good.” (Id. at 547-548).

Dr. Wallace also noted that the MRIs of Plaintiff’s hips, pelvis and

lumbar spine were completely normal and that accordingly, there was

no objective or obvious reason for “persistent pain as he

describes[]” to keep him from returning to gainful employment.

(Id.) On May 21, 2002, Plaintiff told Dr. Aquilino that he hurt his

left shoulder when he fell from a 4 wheeler the week before; his

exam showed no sensory/motor deficits and x-rays showed no evidence

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22

of fractures/dislocations and he was prescribed Ibuprofen for pain.

(Id. at 658). 

1. Whether the ALJ erred by failing to assign controlling

weight to the opinion of Plaintiff’s treating physician?

Plaintiff contends that the ALJ erred by failing to properly

assign controlling weight to the opinion of his treating physician,

Dr. Barnes, particularly the opinions expressed in the physical

capacities evaluation completed by him and in his treatment notes,

in violation of SSR 96-2p and 20 C.F.R. § 404.1527(d). (Doc. 8 at

4-6). Plaintiff argues that the ALJ failed to give any weight to

Dr. Barnes’ RFC finding of less than sedentary and to the complaints

of hip/groin pain from which he assessed myalgias, arthralgias and

pain to palpation in the lower back. (Id. at 5-6 (citing Tr. 391-

392)). Plaintiff claims that Dr. Barnes’ findings are supported by:

1) Dr. Revels’ April 7, 1998 note which stated that Plaintiff could

not perform any job, even one sitting, due to pain, and that he

needed a mass excised to allow him to become gainfully employed; and

2) Dr. Perry’s treatment notes (Id. (citing to Tr. 305, 346, 373,

379)).

The undersigned finds that the ALJ’s decision is supported by

substantial evidence. Eleventh Circuit case law provides that

controlling weight must be given to the opinion, diagnosis and

medical evidence of a treating physician, unless there is good cause

to do otherwise. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1159-1160 (11th Cir. 2004) (per curiam); Phillips v. Barnhart, 357

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23

F.3d 1232, 1240 (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.2d at 1240-1241 (citing to Lewis, 125 F.3d at 1440); 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). Accordingly, a treating physician's disability opinion

may be discredited where it is inconsistent with the physician’s own

clinical notes and physical capacities evaluation. Jones v. Dep’t

of Health & Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991).

Moreover, where a treating physician has merely made conclusory

statements, the weight afforded to them by the ALJ depends upon

whether they are supported by clinical or laboratory findings and

other consistent evidence of a claimant’s impairments. Wheeler v.

Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (per curiam); Schnorr

v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987). In contrast, good

cause “is not provided [simply] by the report of a nonexamining

physician where it contradicts the report of the treating

physician.” Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988).

When a treating physician’s opinion does not warrant controlling

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24

weight, the ALJ must clearly articulate his reasons, which must also

be legally correct and supported by substantial evidence in the

record. Crawford, 363 F.3d at 1159-1560; Lamb, 847 F.2d at 703-704.

In the case sub judice, the ALJ found that controlling weight

should not be assigned to the opinion of Dr. Barnes and in doing so,

clearly articulated his reasons for same. The ALJ noted that:

Dr. Stanley Barnes, a family practitioner, initially

examined the claimant on February 15, 2000 and diagnosed

him with right hip pain. Dr. Barnes simply refilled the

claimant’s analgesic and anti-inflammatory medications

and advised him to return as needed. The claimant next

sought Dr. Barnes’ attention on April 3, 2000, when Dr.

Barnes noted that the claimant’s extremities demonstrated

myalgias and arthralgias and his lower back was tender to

palpation. Once again, Dr. Barnes refilled the

claimant’s prescriptions and told him to return as

needed. On April 11, 2000, Dr. Barnes opined that the

claimant could not perform the demands of even sedentary

work. The undersigned is not compelled to agree with

this assessment due to the fact that Dr. Barnes provided

no rationale behind his decision. Dr. Barnes’ treatment

notes do not reflect detailed explanations of the

claimant’s physical examinations in terms of range of

motion, straight leg raise evaluation, strength

assessment or presence of edema. Rather, Dr. Barnes

simply noted his observations of the claimant’s general

arthralgias and refilled his medications. The more a

medical source presents relevant evidence to support an

opinion, particularly medical signs and laboratory

findings, and the better an explanation a source provides

for an opinion, the more weight the Social Security

Administration will give that opinion (20 CFR §§

404.1527(d)(3) and 416.927(d)(3). Dr. Barnes’ functional

capacity assessment is neither rationalized by a

supportive narrative nor substantiated by his own

treatment notes. As such, Administrative Law Judge finds

that controlling weight cannot be assigned to Dr. Barnes’

opinion (Exhibit 20-F).

After Dr. Barnes penned his functional capacity

assessment, he examined the claimant in May 2000 and June

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25

2000, and diagnosed him with osteoarthritis of the right

hip, hypertension, abdominal pain and heme positive

stools. No additional physical findings were made by Dr.

Barnes in addition to the previously mentioned myalgias

(Exhibit 26-F).

 * * *

Dr. Barnes examined the claimant on December 27, 2001 and

noted that the claimant had not seen him in over one

year. Dr. Barnes diagnosed the claimant with diabetes

based on blood glucose analysis and referred him to a

diabetic teaching class (Exhibit 46-F).

(Tr. 23, 25 (emphasis added)).

A review of the record reveals that the ALJ properly declined

to assign controlling weight to Dr. Barnes’ opinion because it was

unsubstantiated by, and inconsistent with, reliable objective

medical evidence of record, and was conclusory. At the outset, the

undersigned notes that Plaintiff testified that he lost his most

recent job as a security guard not due to any physical ailment, but

due to being laid off from cut backs. (Tr. 47-48, 53). Moreover,

while Dr. Barnes indicated in an April 11, 2000 physical capacities

evaluation that Plaintiff could not perform sedentary work, his

treatment notes for February 15th, April 3rd and May 3rd fail to

document any clinical findings to support his opinion, and his

treatment notes are devoid of a detailed explanation of his physical

examination of Plaintiff in terms of range of motion, straight leg

raising evaluation, strength assessment or the presence of edema.

(Id. at 392, 410). Thus, it is simply unclear upon what basis Dr.

Barnes reached his own conclusions regarding Plaintiff’s right hip

pain, myalgia, arthralgia and arthritic-related problems. Indeed,

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26

Dr. Barnes’ February 15th notes reflect that Plaintiff had been on

pain medication that “helped him out[,]” and his April 3rd notes

reflect that his treatment has “helped him out.” (Id. at 392).

Also, Dr. Barnes noted that there were large gaps in the time

Plaintiff came in for treatment, including a period of over 1 year

when he was not even treated by Dr. Barnes at all (from September

7, 2000 to December 27, 2001). (Id. at 391-392, 410, 549-553).

Moreover, Dr. Barnes’ RFC opinion was inconsistent with the

findings of other treating and consultative physicians who examined

Plaintiff after his surgery to remove the heterotopic bone mass and

appear to be based on Plaintiff’s own self-serving subjective

reports. For example: 

• Dr. Perry found, after surgery to remove the

heterotopic bone mass in 1998, that Plaintiff’s

prognosis was good, he was in good condition, and he

had independent locomotion. (Tr. 341-346).

Plaintiff later reported to Dr. Perry that he felt

“very good” during therapy and experienced

improvement in his condition for up to 1 hour after

treatment, which Dr. Perry found was a definite

improvement. (Id. at 373). Approximately 4 months

after surgery, Dr. Perry wrote to Plaintiff’s

counsel that the physical therapy was providing

“good relief” of his symptoms for up to 3 hours and

that he should have “considerable relief of

discomfort.” (Id. at 379). Indeed, a physical

therapy report in March 1999 indicated that

Plaintiff had decreased pain and greater flexibility

after treatment, even though temporary, and

improvement of hip flexibility from 70 to 85 degrees

and hip abduction from 30 to 35 degrees. (Id. at

390). It was further noted that he could perform

his stretches and strengthening exercises on his

own, at home, from that point forward. (Id.)

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27

• Dr. Russell noted in May 1999, that Plaintiff’s

complaints of pain were less after surgery, as his

pain was no longer level “10/10” but was “7/10,” and

in June 1999, he was found to be doing “fairly

well.” (Id. at 385-386). Plaintiff even reported

to Dr. Russell that he had obtained a dispatcher job

with the Sheriff’s department and worked for a

while, but then quit, not due to pain, but because

he “did not like it.” (Tr. 385). 

• Dr. Brown noted in January 1999 that Plaintiff had

only a minimal right leg limp and that his

orthopedic problems may well improve further. (Id.

at 361-367). Additionally, he noted, in a RFC

assessment, that Plaintiff experienced only slight

limitations of activities of daily living. (Id.) 

• Dr. Fontana opined, in an RFC evaluation, that

Plaintiff could sit/walk/stand for 1 hour each, sit

for 8 hours per 8 hour day, stand for 6 hours per 8

hour day, walk for 4 hours per 8 hour day, lift up

to 10 pounds continuously, lift up to 25 pounds

frequently, lift up to 50 pounds occasionally, but

never lift 51 pounds or more, and carry up to 5

pounds continuously, 20 pounds frequently, 25 pounds

occasionally but never 26 pounds or more. (Id. at

359). Dr. Fontana noted further, that Plaintiff can

use his hands and feet for repetitive movements, can

occasionally bend, squat, crawl, climb and

frequently reach, and only has total restrictions

being around unprotected heights, moderate

restrictions against being around moving machinery,

and mild restrictions driving automotive equipment.

(Id.) Dr. Fontana added that Plaintiff had 2+ deep

tendon reflexes, normal sensory and motor function,

good squatting, good toe to heel gait, straight leg

raising test 90 degrees sitting and 45 degrees on

right and left in supine position, mild hip pain,

good range of hip motion and that even though there

was a possibility for even further improvement,

Plaintiff could perform light and sedentary type of

work activities at that point in time. (Id.) 

• Dr. Crotwell, in 2001, found no significant physical

limitations/abnormalities and noted that some of

Plaintiff’s findings were inconsistent and that

Plaintiff would fight him during the physical

examination. He opined that Plaintiff had very

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28

little orthopaedic problems and would be able to

carry out moderate, light and sedentary work. (Tr.

465-466). Upon examination, he found that Plaintiff

had normal toe/heel walk, 2+ reflexes, normal

sensory exam, 5/5 motor strength, 50% flexion and

40% extension without tenderness/spasms, sitting

straight leg raising test at 90 degrees with no pain

at all and negative bilateral lying hip rotation.

(Id.) Dr. Crotwell also noted that Plaintiff’s

calves and thighs showed “tremendous quad and

musculature” which was very inconsistent with his

claim of having to use crutches. (Id.) Dr.

Crotwell also completed a physical capacities

evaluation for Plaintiff finding that he could

sit/stand/walk for 2 hours at one time;

sit/stand/walk for 8 hours per 8 hour day; lift up

to 50 pounds frequently, 25 pounds continuously and

up to 100 pounds occasionally; carry up to 25 pounds

frequently, 20 pounds continuously and up to 50

pounds occasionally but no more; frequently bend,

squat, crawl, climb and reach continuously; use both

hands and feet for repetitive movements. (Id.) 

• Dr. Wallace found that there was no obvious or

objective reason for Plaintiff’s claims of

persistent pain and opined that he could return to

work, noting what he termed as Plaintiff’s “drug

seeking behavior.” (Id. at 341, 357-358, 466, 470-

491, 547, 685-687). In January 2002, Dr. Wallace

further noted that x-rays after Plaintiff’s surgery

showed “excellent” results and his range of motion

was “quite good.” (Id.) 

Finally, Plaintiff’s 2001 records from Mobile Infirmary reveal

that he had no difficulty walking, had full range of movement and

his x-rays were within normal limits. (Tr. 527-546). See also

supra. In sum, the record fails to demonstrate any significant

physical findings after Plaintiff’s surgery that would prevent him

from working. To the contrary, the records reveal that Plaintiff’s

condition responded to physical therapy and treatment, and that

within a few months after surgery, he exhibited good range of

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29

motion, good toe/heel gait, 2+ deep tendon reflexes, etc. See

supra. In light of the substantial medical evidence, good cause

existed for the ALJ to decline to assign controlling weight to Dr.

Barnes’ sedentary finding, as it was inconsistent with the objective

medical evidence of record, at a minimum, and conclusory, at best.

See, e.g., Lewis v. Apfel, 2000 WL 207018 (S.D. Ala. Feb. 16, 2000).

2. Whether the ALJ erred by finding that Plaintiff could

perform his past relevant work as a security guard when

VE testimony limited him to the performance of a

sit/stand option job?

Plaintiff argues that the ALJ erred by finding that he could

perform his PRW as a security guard in violation of SSR 82-62.

(Doc. 8 at 6-9). Plaintiff asserts that the physical assessment

completed by Dr. Fontana limited him to sitting, walking and

standing for only 1 hour at a time, that the ALJ adopted Dr.

Fontana’s assessment, and that the VEs testified that the

limitations imposed by Dr. Fontana amounted to a sit/stand

limitation which would prevent Plaintiff from returning to his

security guard position. (Id. (citing to Tr. 30, 359)). The

undersigned’s review of the record reveals that the ALJ did not err

in concluding that Plaintiff could return to his past work as a

security guard. 

An individual will be found "not disabled" at step four when

it is determined he retains the residual functional capacity (“RFC”)

to perform the actual functional demands and job duties or a

particular past relevant job, or the functional demands and job

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 29 of 38
30

duties of the occupation as generally required by employers

throughout the national economy. Social Security Ruling 82-62:

Titles II and XVI: A Disability Claimant's Capacity to Do Past

Relevant Work, In General. Plaintiff bears the burden of proving

an inability to perform PRW (i.e., that he cannot meet the physical

and mental demands of same). See, e.g., Lucas v. Sullivan, 918 F.2d

1567, 1571 (11th Cir. 1990); Cannon v. Bowen, 858 F.2d 1541, 1544

(11th Cir. 1988); Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.

1986) (per curiam); Jackson v. Bowen, 801 F.2d 1291, 1293 (11th Cir.

1986). SSR 82-62 provides that evaluation under § 404.1520(e)

"requires careful consideration of the interaction of the limiting

effects of the person's impairment(s) and the physical and mental

demands of . . . her PRW to determine whether the individual can

still do that work." 20 C.F.R. §§ 404.1520a(e), 416.920a(e). See

also e.g, Lucas, 918 F.2d at 1574 n. 3 (stating that to support a

conclusion that a claimant "is able to return to her past work, the

ALJ must consider all the duties of that work and evaluate her

ability to perform them in spite of her impairments[]"). As noted

supra, however, the plaintiff bears the burden of proving that he

cannot meet the physical and mental demands of his past relevant

work, either as he performed it in specific past employment or as

the work is generally performed in the national economy. Jackson,

801 F.2d at 1293. 

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 30 of 38
6

The residual functional capacity is a measure of what a claimant can do

despite limitations. 20 C.F.R. § 404.1545. It is the function of the ALJ to

determine the Plaintiff's residual functional capacity through examination of

the evidence and resolution of conflicts in the evidence. Wolfe v. Chater, 86

F.3d 1072, 1079 (11th Cir. 1996). The ALJ must base the assessment upon all

of the relevant evidence of the Plaintiff's remaining ability to do work

notwithstanding her impairments. Lewis 125 F.3d at 1440; 20 C.F.R. §§

404.1546, 404.1527.

31

Nevertheless, the ALJ must develop a full and fair record

concerning the issue, as in the absence of evidence of the physical

or mental requirements and demands of the work, he could not

properly determine that the plaintiff retained the residual

functional capacity to perform it. See, e.g., Schnorr, 816 F.2d at

581; Nelms v. Bowen, 803 F.2d 1164, 1165 (11th Cir. 1986). Accord

Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990). Indeed,

the Commissioner’s own instructions are even more specific:

. . . . [a]ny 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 . . . . Adequate documentation of past work

includes factual information about those work demands

which have a bearing on the medically established

limitations. Detailed information about strength,

endurance, manipulative ability, mental demands and other

job requirements must be obtained as appropriate. This

information will be derived from a detailed description

of the work obtained from the claimant, employer, or

other informed source . . . .

SSR 82-62, 1982 WL 31386, *3. Accordingly, the ALJ must determine

the claimant’s RFC6 using all relevant medical and other evidence in

the record. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.

2004). Thereafter, if the ALJ determines that the plaintiff has the

RFC to meet the physical and mental demands of work performed in the

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7

While at first blush the findings appear inconsistent, an overall

reading of Dr. Fontana’s evaluation reflects that the first section addressed

the total sitting, walking and standing that Plaintiff could do at one time,

while section two addressed the total amount of sitting, walking and standing

that he could do during the course of an entire 8 hour workday. Thus, the

findings were not inconsistent, as they were meant to address two different

time intervals.

32

past, he is considered able to perform his PRW, and thus, is not

disabled. 20 C.F.R. §§ 416.960, 404.1520. 

In the case sub judice, substantial evidence supports the ALJ’s

decision that Plaintiff could return to his PRW as a security guard.

As noted supra, Dr. Fontana, in his physical assessment dated

January 26, 1999, found that Plaintiff could sit/stand/walk for a

total of 1 hour at a time in an 8 hour workday, could sit a total

of 8 hours during an entire 8 workday, could stand a total of 6

hours during an entire 8 workday, and could walk a total of 4 hours

during an entire 8 workday. (Tr. 359). At both administrative

hearings, the ALJ asked the VEs whether an individual with the same

vocational profile as the claimant, and who possessed the RFC

identified in Dr. Fontana’s functional evaluation could work as a

security guard. (Id. at 68-70, 97-98, 101-102). Both VEs opined

that such an individual could work as a security guard. (Id.)

While VE Cowart noted that the findings in the first part of Dr.

Fontana’s evaluation and those in the second appear inconsistent,7

he opined that if Plaintiff could sit for 8 hours, stand for 6

hours, and walk for 4 hours in an entire 8 hour workday, he could

perform his PRW as a security guard. (Id. at 68-69). VE Cowart

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 32 of 38
33

further testified that if you focused only on the part of evaluation

that indicated that Plaintiff could walk/sit/stand for 1 hour, then

he could not perform the security guard position; however, he

testified that “[t]here should be jobs that he could perform with

a sit/stand option.” (Id. at 69). 

During the second administrative hearing, VE Murphy testified

that with the physical limitations set out by Dr. Fontana, Plaintiff

could perform his PRW as a security guard. (Id. at 97-98). VE

Murphy also noted that if an individual could stand for 1 hour and

walk for 1 hour, such would not require a sit/stand option for light

work; however, if the individual could only be on his feet for 1

hour total, then a sit/stand option would be required and Plaintiff

would not be able to perform the security guard position. (Tr. 101-

102). VE Murphy further testified, however, that if Plaintiff could

not return to his PRW, there are other jobs, both sedentary and

light, which he could perform. (Id. at 98-99). 

In view of the above evidence, the undersigned finds that the

ALJ did not err in concluding that Plaintiff could return to the

security guard position. The position is classified as light, and

requires the ability to walk/stand for 6 hours in an 8 hour work

day, to lift no more than 20 pounds at a time, and to frequently

lift and carry objects weighing only up to 10 pounds. 20 C.F.R. §

404.1567; SSR 83-10, 1983 WL 31251 (S.S.A). The physical

limitations contained in Dr. Fontana’s evaluation, including his

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 33 of 38
34

finding that during an entire 8 hour day, Plaintiff could sit for

8 hours, stand for 6 hours, and walk for 4 hours, clearly come

within the parameters of the security guard position. Accordingly,

because Plaintiff’s PRW as a security guard did not require the

performance of work activities precluded by his impairments, the

ALJ's finding that he is able to return to his PRW is supported by

substantial evidence and free of legal error. 

3. Whether the ALJ erred by failing to develop a full and

fair record regarding the vocational opportunities

available to Plaintiff, in violation of SSR 00-4p?

Plaintiff argues that the ALJ violated SSR 00-4p because he

failed to develop a full and fair record with regard to the

vocational opportunities available to him by failing to ask the VE

whether the evidence conflicted with the Dictionary of Occupational

Titles (“DOT”) and obtain a reasonable explanation for any apparent

conflict. (Doc. 8 at 9-11). Plaintiff claims that the ALJ did not

ask the VE whether his testimony was consistent with DOT job

descriptions; that the VE did not cite any DOT job description

numbers during his testimony; and that the ALJ did not cite any DOT

job description numbers in his description. (Id. at 11). 

The undersigned finds that Plaintiff’s argument lacks merit.

At the outset, the undersigned notes that this case was decided at

step four of the sequential evaluation process; thus, while the ALJ

may have questioned the VEs concerning other jobs which Plaintiff

could perform, he was not required to do so once he determined that

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35

Plaintiff could return to his PRW. See, e.g., Lewis, 2000 WL

207018, *11. 

VE Murphy testified that Plaintiff’s PRW consisted of security

guard (light, semi-skilled), janitor (medium, unskilled), substitute

bus driver (medium, semi-skilled) and laborer (heavy, unskilled),

and that based upon Dr. Fontana’s evaluation, he could perform the

demands of the security guard position. (Tr. at 96-105). In his

decision, the ALJ stated that pursuant to SSR 00-4p, he examined VE

Murphy’s testimony of the nature of the claimant’s PRW against the

DOT description, and found that there was no conflict between the

DOT description and the VE’s testimony regarding Plaintiff’s PRW.

(Id. at 29). Additionally, while Plaintiff contends that the ALJ

erred in not asking the VE about any conflict, he has not identified

any conflict to the Court, nor has the Court uncovered any such

conflict. SSR 00-4p provides, in pertinent part, that:

[o]ccupational evidence provided by a VE or VS generally

should be consistent with the occupational information

supplied by the DOT. When there is an apparent

unresolved conflict between VE or VS evidence and the

DOT, the adjudicator must elicit a reasonable explanation

for the conflict before relying on the VE or VS evidence

to support a determination or decision about whether the

claimant is disabled. At the hearings level, as part of

the adjudicator’s duty to fully develop the record, the

adjudicator will inquire, on the record, as to whether or

not there is such consistency. 

SSR 00-4p, 2000 WL 1898704, *2 (S.S.A.) (emphasis added). Because

the record is totally devoid of any evidence that suggests a

possible conflict between the VE’s testimony and the occupational

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 35 of 38
36

information supplied by the DOT, SSR 00-4p was simply not triggered,

and can accordingly provide no ground for error in this case. See,

e.g., Jackson v. Barnhart, 120 Fed. Appx. 904, 905-906 (3rd Cir.

2005) (unpublished). 

V. Conclusion

For the reasons set forth, and upon careful consideration of

the administrative record and memoranda of the parties, it is

recommended that the decision of the Commissioner of Social

Security, denying Plaintiff’s claim for disability insurance

benefits and supplemental security income benefits, be AFFIRMED.

The attached sheet contains important information regarding

objections to this report and recommendation.

DONE this 31st day of March, 2006.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 36 of 38
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of this

document, file specific written objections with the clerk of court.

Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on

appeal, of the factual findings of the magistrate judge. See 28

U.S.C. § 636(b)(1)(c); and Lewis v. Smith, 855 F.2d 736, 738 (11th

Cir. 1988). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more detail

in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a

“Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection.

A magistrate judge’s recommendation cannot be appealed to a Court

of Appeals; only the district judge’s order or judgment can be

appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within ten (10)

days of being served with a copy of the statement of objection.

See Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate

judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 37 of 38
this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:04-cv-00781-BH-B Document 11 Filed 03/31/06 Page 38 of 38