IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT SANDERS, :

Plaintiff, :

vs. CA 05-0383-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking

judicial review of a final decision of the Commissioner of Social Security

denying his claim for disability insurance benefits. The parties have consented

to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C.

636(c), for all proceedings in this Court. (See Doc. 14 (“In accordance with the

provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case

consent to have a United States Magistrate Judge conduct any and all

proceedings in this case . . . and order the entry of a final judgment, and

conduct all post-judgment proceedings.”)) Upon consideration of the

administrative record, plaintiff's proposed report and recommendation, the

Commissioner's proposed report and recommendation, and the oral arguments

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 1 of 18
1 Any appeal taken from this memorandum opinion and order and judgment shall

be made to the Eleventh Circuit Court of Appeals. (See Doc. 14 (“An appeal from a judgment

entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for

this judicial circuit in the same manner as an appeal from any other judgment of this district

court.”))

2

of the parties on January 11, 2006, it is determined that the Commissioner’s

decision denying plaintiff benefits should be affirmed.1

Plaintiff alleges disability due to lumbar spondylosis, diabetes, and a

heart condition. The Administrative Law Judge (ALJ) made the following

relevant findings:

1. The claimant’s insured status for disability insurance

benefits expired at the close of December 31, 2001 (Exhibit B4D). Therefore, disability must be established on or before the

date last insured.

2. The claimant alleged a disability onset date of May 5,

1998, one day after the prior unfavorable decision of the

Administrative Law Judge. Thus, the period under adjudication

has extended from May 5, 1998 through December 31, 2001.

3. There is no evidence to show that the claimant engaged

in substantial gainful activity during the period under

adjudication.

4. The claimant had the following “severe” medically

determinable impairments on or before [the] date last insured:

bulging discs versus disc herniation of the low back; status post

rotator cuff repair; reduced intellectual functioning due to an 80

IQ score with an overall rating of low average intelligence; and

somatization disorder.

5. The claimant alleged diabetes, blurred vision and a heart

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 2 of 18
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condition as a “severe” impairments, but the same were not

established as entailing significant work-related limitations of

record for a continuous period of twelve months on or before

[the] date last insured.

6. No single medically determinable impairment, or

combination thereof, had specific or equivalent severity of

medical findings necessary to establish presumptive disability

under the evaluative standards found in Appendix 1 of the

Regulations on or before [the] date last insured.

7. On or before [the] date last insured, the claimant retained

the residual functional capacity for at least light and sedentary

exertion, in function-by-function terms (SSRs 96-8p and 83-10),

that did not involve overhead reaching on a regular basis. The

claimant further retained the mental residual functional capacity

for at least less stressful, simple unskilled work tasks (SSR 85-

15). In this regard, the claimant had no more than a “moderate”

limitation in his ability to perform the activities of daily living;

experienced no more than “slight” difficulties in his ability to

function socially; “seldom” experienced documented limitations

in his concentration, persistence, and pace; and did not

experience episodes of decompensation during the period of

adjudication. This combined physical and mental work capacity

was not prohibited or significantly altered by continuous 12-

month periods of impairment exacerbation during the period of

adjudication, i.e., May 5, 1998 through December 31, 2001, the

claimant’s date last insured. There were no treating physician

opinions on a specific work capacity, rendered of record,

deemed contrary to the above-stated residual functional capacity

for the period of adjudication.

8. The claimant’s representative asserted that new and

material evidence was submitted after the claimant’s date last

insured, i.e., December 31, 2001, that would adequately

establish disability from the claimant’s impairments that would

relate back to the period of May 5, 1998 through December 31,

2001. However, the claimant did not seek treatment for an

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extended period of time after the date last insured, and later

diagnostic testing showed some improvement with regard to the

lower back. If there were any presumed worsening of the

claimant’s back condition that justified surgery in February

2003, this was too distant in time to reasonably alter the

claimant’s residual functional capacity during the period of

adjudication.

9. The claimant’s testimony of subjective complaints and

functional limitations was not supported by the evidence as a

whole in the disabling degree alleged and therefore lacked

credibility for the time period on of before the date last insured.

10. Based on the residual functional capacity stated above,

the claimant was presumably unable to perform any category of

past relevant work on or before the date last insured.

11. The claimant was a “younger individual” on or before the

date last insured. 

12. The claimant had attained a 10th grade “limited”

education on or before the date last insured.

13. The transferability of past-acquired work skills under the

medical/vocational guidelines would be “immaterial” to the

outcome of this case for the time period on or before the date

last insured.

14. Considering the claimant’s vocational factors and

residual functional capacity, vocational Rules 202.18 and 202.19

of the medical/vocational guidelines (Appendix 2) provide a

framework for decisionmaking on or before the date last

insured. Within that framework, the claimant was able to

perform representative occupations existing in significant

numbers in the regional and national economies on or before

[the] date last insured, as illustrated by the testimony of an

impartial vocational expert.

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15. The claimant was not under a disability as defined in the

Social Security Act, at any time prior to his date last insured,

December 31, 2001.

(Tr. 639-641 (emphasis in original)) The Appeals Council affirmed the ALJ’s

decision (see Tr. 587-590) and thus, the hearing decision became the final

decision of the Commissioner of Social Security.

DISCUSSION

In all Social Security cases, the claimant bears the burden of proving

that he is unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001

(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; and (4) the claimant's age, education and work history. Id. at 1005.

Once the claimant meets this burden, as here, it becomes the Commissioner's

burden to prove that the claimant is capable, given his age, education and work

history, of engaging in another kind of substantial gainful employment which

exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th

Cir. 1985).

The task for the Magistrate Judge is to determine whether the

Commissioner's decision to deny claimant benefits, on the basis that he can

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 5 of 18
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perform light and sedentary work activity within the framework of the grids,

a representative sample of which was identified by the vocational expert, is

supported by substantial evidence. Substantial evidence is defined as more

than a scintilla and means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S.

389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether

substantial evidence exists, we 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).

In this case, the plaintiff contends that the ALJ committed the

following errors: (1) he improperly substituted his opinion for that of the

medical expert, Dr. Bendt Peterson; (2) he failed to obtain the testimony of a

medical expert; and (3) he erred in finding his diabetes and heart condition to

be non-severe impairments. The Court considers plaintiff’s allegations of error

in reverse order. 

A. Plaintiff’s Diabetes and Heart Condition. The ALJ

specifically found plaintiff’s diabetes and heart condition to be non-severe

impairments during the relevant time period, that is, from May 5, 1998 through

December 31, 2001. (Tr. 639, Finding No. 5 (“The claimant alleged diabetes,

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2 The evidence from the relevant time period, that is, May 5, 1998 through

December 31, 2001, regarding plaintiff’s diabetes reflects nothing other than this condition is

controlled by medication provided the claimant is medication-compliant. (See, e.g., Tr. 451, 469

& 482) There is no evidence that any doctor ever indicated that plaintiff’s ability to perform the

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blurred vision and a heart condition as ‘severe’ impairments, but the same

were not established as entailing significant work-related limitations of record

for a continuous period of twelve months on or before [the] date last

insured.”); see also Tr. 629 (“The claimant also alleged multiple other

impairments as ‘severe’ conditions during the period of adjudication including

a ‘heart condition,’ ‘blurred vision’ and ‘diabetes.’ However, the same were

not established as entailing significant work-related limitations of record for

a continuous period of twelve months during the period of adjudication. In

addition, there was a lack of medical documentation to support an allegation

that such impairments were ‘severe.’”)) It is plaintiff’s contention that the ALJ

erred in finding these impairments non-severe in light of the low threshold

showing necessary in this Circuit to establish a severe impairment. See

McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (“Step two is a

threshold inquiry. It allows only claims based on the most trivial impairments

to be rejected.”). 

Even assuming the ALJ erred in failing to find that plaintiff’s diabetes

and heart condition were severe during the relevant time period,2

 such error

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 7 of 18
physical and mental requirements of work would be impacted in any manner by his diabetes;

therefore, the ALJ’s finding that plaintiff’s diabetes was a non-severe impairment during the

period of adjudication, if error at all, was mere harmless error. 

During the relevant time period, specifically in December of 2000, Dr. Raymond Bell,

classified plaintiff’s heart condition as Functional Class I. (Tr. 481) “Class I of the American

Heart Association’s heart disease classification system . . . applies to patients ‘with cardiac

disease but no resulting limitation of physical activity.’” Anderson v. Bowen, 868 F.2d 921, 926

(7th Cir. 1989) (emphasis in original). The remaining evidence of record from the relevant time

period related to plaintiff’s heart condition is not contrary to Dr. Bell’s classification of Sanders’

heart condition. (See Tr. 451, 469, 476 & 566-567) Accordingly, the Court again concludes that

even if the ALJ erred in failing to find plaintiff’s heart condition a severe impairment, such error

was harmless.

8

was harmless since the evidence of record establishes, as referenced by the

ALJ, that these conditions would not entail any significant work-related

limitations of function not contemplated by the ALJ’s residual functional

capacity determination.

B. The ALJ’s Failure to Obtain the Testimony of a Medical

Expert. Plaintiff contends that the ALJ should have obtained the opinion of

a medical expert pursuant to SSR 96-6p (“When additional medical evidence

is received that in the opinion of the administrative law judge . . . may change

the State agency medical or psychological consultant’s finding that the

impairment(s) is not equivalent in severity to any impairment in the Listing of

Impairments . . . the administrative law judge must call on a medical expert.”)

in order to assess whether his back impairment was equivalent in severity to

a listed impairment and, in addition, should have obtained testimony from a

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medical expert pursuant to SSR 83-20 in order to determine the precise date

plaintiff’s progressive back impairment became disabling.

The need for the testimony of a medical expert pursuant to SSR 83-20

is, by the very terms of the ruling, limited to those cases in which precise

evidence of the date of onset of disability is either not available or is in conflict

so that there is a need to infer the onset date of disability. See SSR 83-20.

In determining the date of onset of disability, the date

alleged by the individual should be used if it is consistent

with all the evidence available. When the medical or work

evidence is not consistent with the allegations, additional

development may be needed to reconcile the discrepancy.

However, the established onset date must be fixed based on the

facts and can never be inconsistent with the medical evidence of

record.

...

In some cases, it may be possible, based on the medical

evidence to reasonably infer that the onset of a disabling

impairment(s) occurred some time prior to the date of the first

recorded medical examination, e.g., the date the claimant

stopped working. How long the disease may be determined to

have existed at a disabling level of severity depends on an

informed judgment of the facts in the particular case. This

judgment, however, must have a legitimate medical basis. At

the hearing, the administrative law judge (ALJ) should call

on the services of a medical advisor when onset must be

inferred. If there is information in the file indicating that

additional medical evidence concerning onset is available, such

evidence should be secured before inferences are made.

Id. (emphasis supplied). In this case, there was no occasion to infer the onset

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 9 of 18
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of disability inasmuch as the evidence of record clearly established plaintiff’s

disability onset date as May 5, 1998. As the onset date of disability was

established by the evidence of record, the provisions of SSR 83-20 were not

applicable in this case; therefore, the ALJ committed no error in failing to

procure the assistance of a medical advisor to infer the onset date of disability.

Social Security Ruling 96-6p covers consideration of administrative

findings of fact by state agency medical and psychological consultants, as well

as other program physicians and psychologists, at the Administrative Law

Judge and Appeals Council levels of administrative review in the area of

medical equivalence under the Listing of Impairments. The ruling also

“clarifies policy interpretations regarding administrative law judge and

Appeals Council responsibility for obtaining opinions of physicians or

psychologists designated by the Commissioner of Social Security regarding

equivalence to listings in the Listing of Impairments[.]” The ruling provides,

in relevant part, as follows:

When an administrative law judge or the Appeals

Council finds that an individual’s impairment(s) is not

equivalent in severity to any listing, the requirement to receive

expert opinion evidence into the record may be satisfied by any

of the foregoing documents signed by a State agency medical or

psychological consultant. However, an administrative law judge

and the Appeals Council must obtain an updated medical

opinion from a medical expert in the following circumstances:

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--When no additional medical evidence is received, but

in the opinion of the administrative law judge or the Appeals

Council the symptoms, signs, and laboratory findings reported

in the case record suggest that a judgment of equivalence may

be reasonable; or When additional medical evidence is received

that in the opinion of the administrative law judge or the

Appeals Council may change the State agency medical or

psychological consultant’s finding that the impairment(s) is not

equivalent in severity to any impairment in the Listing of

Impairments. 

When an updated medical judgment as to medical

equivalence is required at the administrative law judge level in

either of the circumstances above, the administrative law

judge must call on a medical expert.

Id. (emphasis supplied).

It is plaintiff’s argument that when the ALJ received additional medical

evidence from Drs. Edmund Dyas and Bendt Peterson (see Tr. 725-729 & 744-

753) he was required to call on a medical expert to offer an opinion as to

whether plaintiff’s back impairment was equivalent in severity to any listed

impairment. The problem with this argument, however, is that the evidence

supplied by Drs. Dyas and Peterson which plaintiff relies upon came into

existence well over a year after Sanders’ insured status expired and these two

doctors offer no opinion which relates this evidence back to plaintiff’s

condition as it existed at the time his insured status expired. Accordingly, this

Court cannot find that SSR 96-6p has any application in this case.

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 11 of 18
3 It is, of course, improper for an ALJ to substitute his hunch or intuition for the

diagnosis of a medical professional. See Marbury v. Sullivan, 957 F.2d 837, 840-841 (11th Cir.

1992) (Johnson, Senior Circuit Judge, concurring specially) (“An ALJ may, of course, engage in

whatever idle speculations regarding the legitimacy of the claims that come before him in his

private or personal capacity; however, as a hearing officer he may not arbitrarily substitute his

own hunch or intuition for the diagnosis of a medical professional.”).

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C. The ALJ Improperly Substituted His Opinion for that the

Medical Experts, Drs. Peterson and Dyas. Plaintiff’s primary argument in

this case is that the ALJ improperly substituted his opinion for that of the

medical expert, Dr. Peterson.3

 The plaintiff takes issue with the following

analysis performed by the ALJ:

Before proceeding further, the Administrative Law Judge notes

that the claimant’s representative has asserted that new and

material evidence has been submitted after the claimant’s date

last insured, i.e., December 31, 2001, in an attempt to establish

disability that could relate back to that time period. In support

thereof, reference is made to the updated records from Dr. Dyas

and the treatment notes from Dr. Peterson.

Admittedly, the claimant underwent a lumbar disectomy in

February 2003. However, salient facts from the period,

December 31, 2001 until February 4, 2003, exist and show that

the claimant’s condition in February 2003, cannot be reasonably

related back in time to the period of May 5, 1998 through

December 2001 to establish that the claimant experienced

disability as of or before his date last insured. The

Administrative Law Judge notes, for example, that the medical

record contains a hiatus of treatment for the low back from

December 7, 2001 through October 11, 2002, with the exception

that the claimant received prescriptions from the treating

physician (Exhibits B-23F and B-25F). Further, Dr. Peterson

explained to the claimant that his complaints of pain during the

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prior discography did not correlate to the correct

dermatomes that would be expected based upon the discogram

procedure. That is to say, the results of the discogram did not

indicate that surgical intervention was indicated at the levels of

the spine where the claimant complained he was experiencing

pain. Moreover, a subsequent MRI performed in January 2003,

indicated that the claimant’s condition about the lower back had

somewhat improved. For example, there was only mild disc

protrusion at L4-5 and L5-S1 that was accompanied by some

desiccation. Nevertheless, the claimant’s physician offered

surgery, which the claimant accepted. Thus, to reiterate, the

claimant did not seek treatment for an extended period of time

after the date last insured, and later diagnostic testing showed

some improvement with regard to the lower back. The

undersigned concludes that, even if some worsening of the

claimant’s back condition could be presumed that would have

justified surgery in February 2003, this was too distant in time

to reasonably alter the claimant’s residual functional capacity

for the period of May 5, 1998 through December 31, 2001.

(Tr. 634-635) This analysis, of course, relates to the ever-difficult issue of the

relation back of evidence that comes into existence after a claimant’s insured

status has expired. The ALJ necessarily had to address this issue in some depth

because the claimant’s attorney contended that the medical evidence from

2003 was relevant and related to the condition of Sanders’ back prior to the

expiration of his insured status such that claimant was disabled prior to his date

last insured, that is, December 31, 2001. 

Plaintiff’s counsel takes issue with the ALJ’s assertion “that there was

an explanation to the claimant, by Dr. Peterson, about the correlation of correct

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dermatomes in a prior discogram, which is not to be found in the records. The

ALJ’s conclusions about what this supposed conversation meant is certainly

not supported by the record. The ALJ does not cite to any exhibit, for his

rendition of the medical facts nor for support of his conclusions[.]” (Doc. 9, at

4) Counsel is correct that the ALJ did not cite to any exhibit in support of his

rendition of the medical facts or his conclusions (see Tr. 634-635) but such

exhibits do exist. First, a prior discogram was performed, or effected as Dr.

Peterson would say (see Tr. 726 & 728), on October 23, 2001 by Dr. Todd

Volkman (see, e.g, Tr. 584-585). Moreover, Dr. Peterson did discuss this prior

discogram with Sanders during his office visit on January 8, 2003, as conceded

by counsel (Doc. 9, at 4-5), in the following terms:

Mr. Sanders is a gentleman seen at the request of Dr. Dyas for

chronic lower back symptoms. The symptoms have been

recalcitrant for many years, increasingly limiting in their nature

of severity. He is questioning the efficacy of operative

intervention. Historically he has shown lumber spondylosis by

MRI examination. Discogram was effected by Dr. Volkman

last year with scattered findings of pain at the lower lumbar

levels. No specific delineation of concordance was found on

record review. No delineation was made surgically with the

results of this examination. We discussed in theory the basis

of lumbar spondylosis and the predicate for low back pain

causation. We discussed lumbar discography and the

delineation not of a purely painful response but of a

concordantly painful response. We discussed the ability and

the inability of lumbar arthrodesis across singular or multiple

segments to control symptoms. The risks, benefits, and

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 14 of 18
4 Delineate means to “SKETCH[,]” “DEPICT[,]” or “PORTRAY[.]” WEBSTER’S

II NEW RIVERSIDE UNIVERSITY DICTIONARY, at 359.

15

imponderables of this discographic and ultimate surgical course

were discussed. He wishes to proceed with evaluation. We’ll

schedule him for an up-dated lumbar spine MRI initially. We’ll

follow this with lumbar discography. He will follow in the office

as his MRI scan and lumbar discogram are concluded.

(Tr. 728 & 727 (emphasis supplied)) The highlighted portions of Sanders

office visit with Dr. Peterson on January 8, 2003 are the most important

because though the ALJ used different terms and language to explain these

portions, this Court cannot find that the ALJ’s translation of Peterson’s notes

was incorrect. In this regard, the Court notes that concordance is defined as

“[a] state of agreement[.]” WEBSTER’S II NEW RIVERSIDE UNIVERSITY

DICTIONARY, at 294 (1994). A review of plaintiff’s October 2001 discogram

by Dr. Peterson did not reveal concordance and Peterson clearly explained to

Sanders that what was needed on a discogram, to warrant surgery, was a

“concordantly painful response.” (See Tr. 728 & 727) It is implicit in Dr.

Peterson’s office notes that the reason surgery was not dictated or delineated4

in October of 2001 was because there was lacking a concordantly painful

response. (Id.) Accordingly, the Court finds that Dr. Peterson’s office notes do,

in fact, support the ALJ’s statement that “the results of the [October 2001]

discogram did not indicate that surgical intervention was indicated at the levels

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of the spine where the claimant complained he was experiencing pain.” (Tr.

634) Accordingly, the Court finds that the ALJ did not substitute his hunch or

intuition for the diagnoses or opinions of Dr. Peterson. 

Even assuming that the ALJ erred in finding in this portion of his

analysis of the 2003 evidence that the January 2003 MRI indicated that

plaintiff’s back condition had somewhat improved (see Tr. 634-635), a finding

that appears erroneous to this Court, this fact does not promote plaintiff’s

argument because the real problem for plaintiff revolves around the two

discograms and the state of the remaining medical evidence in existence prior

to December 31, 2001. As aforesaid, the discogram in October of 2001, by Dr.

Peterson’s own interpretation, did not indicate the need for surgical

intervention because of the lack of concordance, that is, the lack of agreement

between plaintiff’s pre-procedure description of his pain and the painful

response elicited by the test. (Compare Tr. 728 & 727 with Tr. 584-585 & 750)

However, the discogram in 2003 clearly revealed “a concordant response at

L5-S1[,]” (Tr. 726; see also Tr. 750 (“The discogram at L5-S1 level was

classically positive. The disc showed a grossly degenerative pattern and held

3 cc of contrast with a tight end point and no leak. There was a large posterior

bulge present. There was a classically positive provocative pain test with

Case 1:05-cv-00383-C Document 15 Filed 01/27/06 Page 16 of 18
5 Dr. Peterson’s office notes, as well, indicate that plaintiff’s lower back symptoms

were progressively becoming more “limiting in their nature of severity.” (Tr. 728)

6 Because this Court sees no basis to relate the 2003 medical evidence back to the

period prior to the expiration of Sanders’ insured status, the ALJ did not err in failing to evaluate

plaintiff’s pain within the context of the 2003 evidence. The ALJ properly evaluated plaintiff’s

pain, as it existed prior to the expiration of his insured status, at length in his decision. (Tr. 630-

634 & 640, Finding No. 9)

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injection of contrast re-producing the exact same back pain that the patient has

been having all along.”)) and, therefore, Dr. Peterson performed a bilateral

disectomy at the L5-S1 level on February 4, 2003 (Tr. 744-745). That the

medical findings did not indicate the need for plaintiff to undergo back surgery

in October of 2001, but indicated the need for surgery in 2003, is very telling

because it indicates that plaintiff’s back impairment worsened.5

 Even more

importantly, nothing about the October 2001 discogram undermines the ALJ’s

conclusion that plaintiff retained the residual functional capacity to perform

those sedentary and light jobs identified by the vocational expert prior to the

expiration of Sanders’ insured status on December 31, 2001. In fact, this

discogram evidence, along with the remaining medical evidence of record

produced prior to the date last insured (see Tr. 435-467, 469-484, 493-514,

519-525, 561-586, 712-723, 729-730 & 763-768), substantially support the

ALJ’s RFC finding and conclusion of non-disability.6

 Therefore, this Court

is constrained to affirm the Commissioner’s decision denying plaintiff

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benefits. 

CONCLUSION

The Court ORDERS that the decision of the Commissioner of Social

Security denying claimant benefits be affirmed.

DONE and ORDERED this the 26th day of January, 2006.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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