IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CATHY ANN TAITE, : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 05-0320-BH-M

JO ANNE B. BARNHART, : 

Commissioner of

Social Security, : 

Defendant. : 

REPORT AND RECOMMENDATION

 In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),

Plaintiff seeks judicial review of an adverse social security

ruling which denied claims for disability benefits and

Supplemental Security Income (SSI). The action was referred for

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

Oral argument was heard on February 23, 2006. Upon consideration

of the administrative record, the memoranda of the parties, and

oral argument, it is recommended that the decision of the

Commissioner be affirmed, that this action be dismissed, and that

judgment be entered in favor of Defendant Jo Anne B. Barnhart and

against Plaintiff Cathy Ann Taite.

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. RichardCase 1:05-cv-00320-BH-M Document 22 Filed 03/08/06 Page 1 of 10
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son v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

Plaintiff was born May 10, 1962. At the time of the

administrative hearing, Taite was forty-one years old, had

completed a high school education (Tr. 475), and had previous

work experience as a nurse’s aide and preparing food in a

delicatessen (Tr. 160, 477). In claiming benefits, Plaintiff

alleges disability due to Human Immunodeficiency Virus (Doc. 11

Fact Sheet).

The Plaintiff filed applications for disability and SSI on

January 29, 2003 (Tr. 82-84; see Tr. 6, 18). Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)

who determined that Taite was capable of performing her past

relevant work as a fast food worker (Tr. 15-34). Plaintiff

requested review of the hearing decision (Tr. 12-14) by the

Appeals Council, but it was denied (Tr. 7-8).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Taite alleges

that: (1) The ALJ did not state what weight he gave to a form

completed by a treating physician; and (2) the ALJ did not

specifically set out the physical and mental demands of her past

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The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

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relevant work (Doc. 11). Defendant has responded to—and

denies—these claims (Doc. 15).

Plaintiff's first claim is that the ALJ did not accord

proper legal weight to the opinions, diagnoses and medical

evidence of Plaintiff's physician. More specifically, Taite

claims that the ALJ did not state what weight he gave to a form

entitled “Medical Report on Adult with Allegation of Human

Immunodeficiency Virus (HIV) Infection,” completed by Dr. Waa,

her treating physician (Doc. 11, pp. 7-9). It should be noted

that "although the opinion of an examining physician is generally

entitled to more weight than the opinion of a non-examining

physician, the ALJ is free to reject the opinion of any physician

when the evidence supports a contrary conclusion." Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);1 see also 20

C.F.R. § 404.1527 (2005). 

The form, completed on July 3, 2003, stated that Plaintiff

had no bacterial, fungal, or viral infections (Tr. 410-12). Dr.

Waa stated, however, that Taite was suffering from “[a]nemia

(hematocrit persisting at 30 percent or less), requiring one or

more blood transfusion on an average of at least once every 2

months” and “diarrhea, lasting for 1 month or longer, resistant

to treatment, and requiring intravenous hydration, intravenous

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alimentation, or tube feeding” and “sinusitis” (Tr. 411). Dr.

Waa noted that Plaintiff had “marked difficulties in completing

tasks in a timely manner due to deficiencies in concentration,

persistence, or pace” (Tr. 412). In the remarks section, the

doctor noted that Taite was taking her medications and was having

a “great response” though complicated by depression, anxiety,

hepatitis C, GERD, asthma, and lymphadenopathy; Dr. Waa’s final

statement was that “her medical problems and treatments,

including HIV-1, leave her with little time or energy to do much

of anything else” (Tr. 412). 

The Court notes that Dr. Waa, approximately a month before

completing this form, wrote a “To Whom It May Concern” letter

which set out some of this same information, but concluded by

saying that “[o]verall, Ms Taite has done remarkably well and has

had an excellent response to her HIV-1 therapy. Her long time

prognosis is quite good presently, but difficult to determine”

(Tr. 383). At that same time, Dr. Waa chose not to complete a

physical capacities evaluation on Plaintiff, stating “I have no

objective means to determine the capacities above” (Tr. 384). 

Two months later, on August 11, 2003, Dr. Waa completed a

physical capacities evaluation form based on Plaintiff’s own

statements, saying that he could not verify her capabilities (Tr.

409). 

The ALJ summarized this information (Tr. 23-24), as well as

the other medical and psychological evidence of record, and then

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specifically stated that he had “assigned significant evidentiary

weight to [Dr. Waa’s] opinions regarding the claimant’s

‘excellent response’ to her antiviral therapy and her favorable

prognosis” (Tr. 27). The ALJ went on, however, to find that the

physical capacities evaluation form completed by Dr. Waa in

August 2003 was of no evidentiary weight as the doctor had

indicated that it was based on Taite’s own description of her

abilities. Id. 

Plaintiff does not challenge this finding. Rather, Taite

notes that the ALJ did not specifically state the weight given to

the HIV Form, asserting that this report spells out criteria that

meets the Listing level of disability (Doc. 11, p. 8). The ALJ

is required to "state specifically the weight accorded to each

item of evidence and why he reached that decision." Cowart v.

Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). 

The Court notes at the outset that Plaintiff has not

directed this Court to a particular Listing which she claims to

meet. The Court further notes that Plaintiff has failed to point

to specific medical records which support Dr. Waa’s statements

that Taite was getting blood transfusions and intravenous feeding

as part of her treatment regimen (see Tr. 411). The Court’s own

review of the medical evidence failed to produce such evidence;

in fact, treatment notes from Dr. Barbara Blumer Corcoran show

that she was treating Plaintiff for constipation during a period

of time (July 17, 2003 through August 13, 2003) that Dr. Waa

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stated she was having diarrhea (see Tr. 445-450; cf. Tr. 411-12).

The Court finds that Plaintiff’s claim is of no merit. At

most, the ALJ committed harmless error in failing to state the

evidentiary weight he gave the HIV Form completed by Dr. Waa. 

However, as Taite has not directed this Court to evidence in the

file which supports the statements made in that form, the Court

cannot say that the ALJ’s conclusions regarding Plaintiff’s

medical condition is not supported by substantial evidence.

Plaintiff next claims that the ALJ did not properly evaluate

the requirements of her past work. Taite has directed this

Court’s attention to Social Security Ruling 82-62 which states

that the ALJ, in finding that a claimant can perform past

relevant work, must make a specific “finding of fact as to the

physical and mental demands of the past job/occupation.” Social

Security Ruling 82-62 (1982 WL 31386, *4 (S.S.A.)). In

discussing the nature of this finding of fact, the Ruling states

the following:

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. Information

concerning job titles, dates work was

performed, rate of compensation, tools and

machines used, knowledge required, the extent

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of supervision and independent judgment

required, and a description of tasks and

responsibilities will permit a judgment as to

the skill level and the current relevance of

the individual's work experience. In

addition, for a claim involving a mental/

emotional impairment, care must be taken to

obtain a precise description of the

particular job duties which are likely to

produce tension and anxiety, e.g., speed,

precision, complexity of tasks, independent

judgments, working with other people, etc.,

in order to determine if the claimant's

mental impairment is compatible with the

performance of such work. Persons with

physical impairments (e.g., cardiovascular or

gastrointestinal disorders) may have

performed stressful tasks. This may also

require a decision as to whether the

impairment is compatible with the performance

of such work. If more than one job was

performed during the 15-year period, separate

descriptions of each job will be secured.

Social Security Ruling 82-62 (1982 WL 31386, *3 (S.S.A.)). 

The Court notes at the outset that there is not a lot of

information regarding Plaintiff’s past work. Taite completed a

social security form which stated that, when she prepared food in

the food industry, she used a cash register and meat slicer and

was required to walk six, stand eight, sit one, climb one, stoop

one, kneel one, and handle or grasp big objects one hour during

an eight-hour day (Tr. 160). The ALJ specifically noted that

that job, according to The Dictionary of Occupational Titles §

311.472-010, was unskilled light work (Tr. 32). The Listing

itself stated the job required the following services:

Requests customer order and depresses keys of

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multicounting machine to simultaneously

record order and compute bill. Selects

requested food items from serving or storage

areas and assembles items on serving tray or

in takeout bag. Notifies kitchen personnel

of shortages or special orders. Serves cold

drinks, using drink-dispensing machine, or

frozen milk drinks or desserts, using

milkshake or frozen custard machine. Makes

and serves hot beverages, using automatic

water heater or coffeemaker. Presses lids

onto beverages and places beverages on

serving tray or in takeout container. 

Receives payment. May cook or apportion

french fries or perform other minor duties to

prepare food, serve customers, or maintain

orderly eating or serving areas. 

See http://www.stepfour.com/jobs/311472010.htm. The Court finds

that this description, referenced by the ALJ, sufficiently sets

out the requirements of Plaintiff’s past work, as it is normally

performed in the national economy. Taite’s claim otherwise is

without merit.

Plaintiff has raised two different claims in bringing this

action. Both are without merit. Upon consideration of the

entire record, the Court finds "such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion." Perales, 402 U.S. at 401. Therefore, it is

recommended that the Secretary's decision be affirmed, see

Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that

this action be dismissed, and that judgment be entered in favor

of Defendant Jo Anne B. Barnhart and against Plaintiff Cathy Ann

Taite.

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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); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). 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 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. 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 this recommendation, but unable to pay the

Case 1:05-cv-00320-BH-M Document 22 Filed 03/08/06 Page 9 of 10
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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.

DONE this 8th day of March, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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