IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RONNIE STEVENS COBY, : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 09-544-CG-M 

MICHAEL J. ASTRUE, : 

Commissioner of

Social Security, : 

Defendant. : 

REPORT AND RECOMMENDATION

 In this action under 405(g) and 1383(c)(3), Plaintiff,

appearing pro se, seeks judicial review of an adverse social

security ruling which denied claims for disability insurance

benefits and Supplemental Security Income (hereinafter SSI). The

action was referred for report and recommendation pursuant to 28

U.S.C. § 636(b)(1)(B). Upon consideration of the administrative

record and the memoranda of the parties, it is recommended that

the decision of the Commissioner be reversed, that this action be

remanded, and that judgment be entered in favor of Plaintiff

Ronnie Stevens Coby and against Defendant Michael J. Astrue.

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. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial eviCase 1:09-cv-00544-CG-M Document 24 Filed 06/02/10 Page 1 of 6
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dence 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).

At the time of the administrative hearing, Plaintiff was

fifty-three years old, had completed a college education (Tr.

49), and had previous work experience as a construction laborer

and cashier (Tr. 50, 58). In claiming benefits, Plaintiff

alleges disability due to osteochondriatal defect of the left

knee and degenerative disc disease (Doc. 10 Fact Sheet).

The Plaintiff filed protective applications for disability

benefits and SSI on January 12, 2006 (Tr. 109-119; see Tr. 11). 

Benefits were denied following a hearing by an Administrative Law

Judge (ALJ) who determined that Coby is capable of performing his

past relevant work as a cashier (Tr. 8-17). Plaintiff requested

review of the hearing decision (Tr. 4-7) by the Appeals Council,

but it was denied (Tr. 1-3).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Coby alleges

that: (1) He can not perform light work; and (2) he can not

perform his past relevant work as a cashier (Doc. 10). Defendant

has responded to—and denies—these claims (Doc. 23). 

Plaintiff claims that the ALJ was incorrect in finding that

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he can perform light work. Light work has been defined as

follows: 

Light work involves lifting no more than 20

pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. 

Even though the weight lifted may be very

little, a job is in this category when it

requires a good deal of walking or standing,

or when it involves sitting most of the time

with some pushing and pulling of arm or leg

controls. To be considered capable of

performing a full or wide range of light

work, you must have the ability to do

substantially all of these activities. If

someone can do light work, we determine that

he or she can also do sedentary work, unless

there are additional limiting factors such as

loss of fine dexterity or inability to sit

for long periods of time. 

20 C.F.R. § 404.1567(b) (2009). 

In reaching the decision that Coby could perform light work,

the ALJ relied on the findings of a disability consultant who

completed a physical residual functional capacity assessment

(hereinafter RFC) which did indicate that Plaintiff had the

physical abilities to perform light work (Tr. 15; cf. Tr. 183-

90). The assessment refers to the person who completed the form

as a medical consultant (Tr. 190).

The Court notes that the Eleventh Circuit Court of Appeals

has held that the opinion of a non-examining physician “is

entitled to little weight and taken alone does not constitute

substantial evidence to support an administrative decision.” 

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Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990)

(citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir.

1985)). In this instance, the report relied on by the ALJ was

not even performed by a physician, much less an examining

physician. The Court finds that the RFC does not constitute

substantial evidence that Plaintiff is capable of performing

light work. 

The Court is well aware that there is very little medical

evidence in this record. The Court is also aware that the ALJ is

responsible for determining a claimant’s residual functional

capacity (hereinafter RFC). See 20 C.F.R. § 404.1546 (2009). 

Nevertheless, the RFC determination must be supported by

substantial evidence. As the ALJ has only given evidentiary

weight to one medical opinion in this record, and that opinion

comes from a non-examining non-physician, the Court finds that

the ALJ’s opinion is not supported by substantial evidence.

Therefore, it is recommended that the action be reversed and

remanded to the Social Security Administration for further

administrative proceedings consistent with this opinion, to

include, at a minimum, a supplemental hearing for the gathering

of evidence regarding Plaintiff’s RFC.

Furthermore, it is recommended that a final judgment be

entered ordering remand in this action pursuant to sentence four

of 42 U.S.C. § 405(g). See Melkonyan v. Sullivan, 501 U.S. 89

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(1991). For further procedures not inconsistent with this recommendation, see Shalala v. Schaefer, 509 U.S. 292 (1993).

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 fourteen 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 fourteen 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.

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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

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 1st day of June, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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