1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

TOMMIE L. CATLEDGE, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) CIVIL ACTION NO. 09-00606-KD-N 

 ) 

MICHAEL J. ASTRUE, ) 

Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

REPORT AND RECOMMENDATION

Plaintiff Tommie L. Catledge filed this action seeking judicial review of a final 

decision of the Commissioner of Social Security (“Commissioner”) that he was not 

entitled to disability insurance benefits (“DIB”) and Supplemental Security Income 

(“SSI”) under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401-

433 and 1381-1383c, respectively. This action has been referred to the undersigned 

Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B). A hearing was held on July 21, 2010 before the undersigned Magistrate 

Judge. Present at the hearing were Colin Edward Kemmerly, Esq., counsel for the 

plaintiff, Tommie L. Catledge and AUSA Patricia Beyer, counsel for defendant. Upon 

consideration of the arguments of counsel, the administrative record (doc. 11), the 

parties’ respective briefs (docs. 12 and 13), and plaintiff’s supplement (doc. 17), the 

undersigned recommends that the decision of the Commissioner be REVERSED and

REMANDED. 

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I. Procedural History. 

Plaintiff filed an application for disability insurance benefits on December 21, 

2006, claiming an onset of disability as of July 12, 2001 (Tr. 93-94). Plaintiff was fortyseven years old at the time he filed his application (Tr. 93-94). The application was 

denied on March 15, 2007 (Tr. 96) and plaintiff requested a hearing (Tr. 104) before an 

Administrative Law Judge (“ALJ”). Following a hearing on December 2, 2008 (Tr. 49-

78), the ALJ issued an unfavorable decision on January 21, 2009 (Tr. 11-25). Plaintiff 

requested a review by the Appeals Council (Tr. 9-10) which was subsequently denied on 

August 28, 2009 (Tr. 1-4), thereby making the ALJ’s decision the final decision of the 

Commissioner. See 20 C.F.R. § 404.981 (2009). Plaintiff has exhausted all his 

administrative remedies and now appeals from that final decision. 

Issues on Appeal. 

1. Whether the ALJ erred by failing to assign controlling weight to the opinion of 

plaintiff’s treating physician. 

2. Whether the ALJ erred by adopting the conclusions of a non-medical State 

agency reviewer to support a physical light exertional maximum residual 

functional capacity.1

 

 1 Plaintiff incorporates in this issue a complaint that the ALJ “failed to comment on a final prior 

Social Security Administration decision from 4/28/05 that Plaintiff is restricted from performing less than 

a full range of sedentary work” and a footnote claiming to have “requested re-opening of his prior 

application” in a letter dated November 21, 2008. Plaintiff’s Brief (Doc. 12) at 2 and n. 1. Plaintiff’s 

prior application received an unfavorable decision of April 28, 2005 (Tr. 79-92) and plaintiff did not 

request review by the Appeals Council. Consequently, contrary to plaintiff’s contention, the ALJ did 

comment to the extent she advised that the doctrine of collateral estoppel precluded plaintiff from 

reopening his prior claim and that “no new and material evidence bearing on that period has been 

submitted” (Tr. 14-15). See also 20 C.F.R. § 404.987(a), which specifies that, if a claimant does not 

request Appeals Council review within sixty-days of the ALJ decision, “you lose your right to further 

review and that determination or decision becomes final.” In addition, This Court is without jurisdiction 

to review any decision by the Commissioner to refrain from reopening a prior claim for benefits. See, 

Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996)(“Federal courts generally lack jurisdiction to review 

(Continued) 

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II. Findings of Fact and Conclusions of Law. 

A. Statement of Facts. 

1. Alleged Impairment and Medical Evidence. 

 Plaintiff alleged that he became disabled on July 12, 2001 (Tr. 118), due to 

residual pain from a lower back injury (Tr. 149). Although plaintiff argues that the ALJ 

erred with respect to the weight given various medical opinions, he does not specifically 

challenge the ALJ’s summary of the medical evidence proffered in this case, as follows: 

The medical evidence of record reflects that the claimant has degenerative 

disc disease of the lumbar spine with L3-4 disc extrusion and fragment 

descending to upper L4. This is documented by an MRI scan of his lumbar 

spine performed in August 2001 and a CT myelogram of the lumbar spine 

performed in February, 2002. The August, 2001 MRI scan revealed L3-4 

central degenerative disc extrusion with a subligamentous fragment 

extending interiorly posterior to the upper L4 vertebral body and an L2-L3 

mild diffuse disc bulge, symmetrically flattening the ventral canal, without 

any central stenosis or nerve root impairment. There was minimal facet 

hypertrophy in the lumbar spine. (Exhibit B11F [Tr. 229-235]). 

The evidentiary record reflects that the claimant presented to a pain 

management physician in February, 2005 for treatment of chronic low back 

pain. The claimant’s physical examination at that time revealed that the 

claimant’s gait was normal, that his posture was slightly flexed, that he was 

able to perform any heel or toe walking, that his range of motion in the 

lumbosacral spine was severely limited in all quadrants with flexion and 

extension but there was no instability located in his spine, his muscle 

strength was normal, and he had normal lordotic curve. The pain 

management physician prescribed the claimant a muscle relaxant and 

recommended that he undergo bilateral lumbar facet joint injections. In 

 

a decision by the Secretary to refrain from reopening a prior claim for benefits.”), citing Califano v. 

Sanders, 430 U.S. 99, 107-09 (1977). Finally, plaintiff fails to cite to any evidence establishing that the 

aforementioned letter dated November 21, 2008 was ever transmitted, a fact denied by the Commissioner. 

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May, 2005, the physician reported that the claimant’s pain had decreased 

following a series of facet nerve blocks in March and April 2005 and the 

physician recommended that the claimant undergo continuing injection 

therapy to include radiofrequency ablation at L2 through L5 levels 

bilaterally. The evidentiary record contains no further treatment records 

from the pain management physician after May, 2005. (Exhibit B11F [Tr. 

229-235]). 

There is no evidence that the claimant sought or received any medical 

treatment for his back pain or for any other physical condition during the 

period June, 2005 to February 2007. The documentation of record 

establishes that the claimant first sought treatment of his chronic low back 

pain at the Mobile County Health Department in February 2007. (Exhibit 

B16F [Tr. 262-274]). The treatment records from the health department 

reflect that the claimant has been followed medically by Dr. Gregory Evans 

at the health department on a regular basis for his back pain since February, 

2007 and that Dr. Evans has treated the claimant conservatively with a 

combination of pain medications, arthritis medications, and muscle 

relaxants. (Exhibit B18F [Tr. 276-293]). 

The record reflects that, on March 8, 2008, Dr. Evans completed a Physical 

Capacities Evaluation (PCE) form on the claimant’s behalf in which he 

opined that the claimant could sit for a total of 2 hours at one time and sit 

for a total of 2 hours during an 8-hour workday. Dr. Evans further opined 

that the claimant could stand/walk for a total of 4 hours during an 8-hour 

workday. He further indicated that the claimant could lift up to 5 pounds 

for a total of 4 hours during an 8-hour workday, that the claimant could 

carry up to 5 pounds for a total of 2 hours during an 8-hour workday, that 

he could lift 6 to 10 pounds for a total of 3 hours during an 8-hour workday, 

and that he could carry 6 to 10 pounds for a total of 1 hour during an 8-hour 

workday. Dr. Evans placed no limitation on the claimant’s abilities to use 

his arms/hands or legs/feet for repetitive movements but he indicated that 

the claimant could only bend for a total of 2 hours during an 8-hour 

workday, that he could only squat for a total of one hour during an 8-hour 

workday, and that he was unable to crawl, climb or reach. (Exhibit B17F 

[Tr. 275]). 

At the request of the Social Security Administration, the claimant 

underwent a consultative physical examination by Dr. John T. Houston in 

February, 2007. On physical examination of the claimant, Dr. Houston 

noted that the claimant had full range of motion of all joints except the 

dorso-lumbar spine, that he had positive seated straight leg raises test on the 

right, that his motor strength was normal, that he had no atrophy in any 

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extremity, and that his gait was steady and without limitations. Dr. 

Houston concluded that the claimant had no impairment in his abilities to 

sit, stand for short periods, walk for short distances, life and carry light 

loads, handle light objects, hear, or speak. (Exhibit B13F [Tr. 238-239]). 

The claimant underwent a consultative orthopedic examination by Dr. 

William A. Crotwell, III on August 19, 2008. On physical examination of 

the claimant, Dr. Crotwell reported that the claimant was able to get up and 

move around without difficulty, that he had limited range of motion with 

poor attempt, that he could toe and heel walk normally, that he had no 

tenderness or spasms, that he has decreased sensory over the right thigh but 

his motor testing revealed no abnormalities, that he was able to perform 

seated straight leg raise testing with no pain at all, and that there was no 

evidence of any muscle atrophy in the lower extremities. X-rays of the 

claimant’s lumbar spine obtained by Dr. Crotwell showed some mild 

scoliosis with no disc space collapse or spurring. Dr. Crotwell stated his 

diagnostic impression as “history of lumbar strain” and “history of lumbar 

degenerative disc disease with no objective evidence whatsoever.” Dr. 

Crotwell concluded his narrative report by stating that the claimant could 

“carry out medium, could carry out light, and could definitely carry out 

sedentary. He could definitely work an eight hour work day without any 

difficulty.” (Exhibit B19F [Tr. 294-296]). 

In conjunction with his overall examination of the claimant, Dr. Crotwell 

completed a Physical Capacities Evaluation (PCE) form in which he 

provided his opinions regarding the claimant’s specific physical capacities 

and limitations. In that form, Dr. Crotwell opined that the claimant could 

sit, stand, and walk for a total of 8 hours each during an 8-hour workday, 

that he could continuously lift 21 to 25 pounds, continually carry 11 to 20 

pounds, frequently lift 26 to 50 pounds, frequently carry 21 to 25 pounds, 

occasionally lift 50 to 100 pounds, and occasionally carry 25 to 50 pounds. 

Dr. Crotwell placed no limitations on the claimant’s abilities to use his 

hands and feet for repetitive movements and opined that the claimant could 

continuously reach and frequently bend, squat, crawl and climb. With 

respect to environmental limitations, Dr. Crotwell opined that the 

claimant’s activities involving unprotected heights were moderately 

restricted but that his activities involving being around moving machinery 

and driving automotive equipment were only mildly restricted. (Exhibit 

B19F [Tr. 294-296]). 

2. Plaintiff’s Testimony. 

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 Plaintiff testified that he was 49 years old, had a driver’s license, was unmarried, 

and had two children for whom he paid no child support (Tr. 54-55). Plaintiff further 

testified that he had received a workers’ compensation settlement in 2001 in the amount 

of $55,000.00 but that none of the money was left. Plaintiff indicated that he had no 

current income other than $178 per month in food stamps (Tr. 61-62), that he lived in a 

house owned by his mother and that his mother and his fiancee paid his utilities (Tr. 62). 

Regarding how his back pain affects his functioning, plaintiff testified that he could “sit 

for [an] hour or two,” stand for “30 to 40 minutes,” and walk for “[m]aybe about 10 or 

15 minutes” (Tr. 65-66). Plaintiff also testified that he takes medications for his low 

back pain and periodically receives pain shots from his physicians which he claims only 

temporarily eases his pain. (Tr. 64). Plaintiff stated that he goes to church every Sunday 

and that the services are from “eight to eleven” (Tr. 67). Plaintiff also testified that he 

had been using a cane given to him by a friend to walk with “over a year” (Tr. 67). 

3. Vocational Expert Testimony. 

Barry Murphy testified as a vocational expert at plaintiff’s administrative hearing 

(Tr. 68-76). According to Mr. Murphy, plaintiff’s past relevant work as a packer had 

been unskilled and of both light and medium exertion (Tr. 68). Mr. Murphy also testified 

that plaintiff’s past work as a janitor/maintenance person had been unskilled and of 

medium exertion (Tr. 69). When the ALJ posed a hypothetical question based on a person 

who was limited to performing light work, with some postural limitation, and who 

required a cane to ambulate (Tr. 69-70), Mr. Murphy indicated that such a person could 

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not perform plaintiff’s past relevant work, but could perform other unskilled light work 

such as cashier, non-postal mail clerk, or parking lot attendant (Tr.70-72). 

4. The ALJ’s Decision. 

 The ALJ found that plaintiff’s degenerative disc disease of the lumbar spine and 

L3-4 extrusion with fragment descending to upper L4 were “severe” impairments (Tr. 17, 

Finding No. 3), but that these impairments did not meet or medically equal any of the 

listed impairments of 20 C.F.R., pt. 404, subpt. P, app. 1 (Tr. 20, Finding No. 4). The 

ALJ also found that plaintiff’s subjective allegations of pain and functional limitations 

were not totally credible (Tr. 22), and further found that plaintiff retained the residual 

functional capacity (“RFC”) to perform work at the light level of exertion, with use of a 

cane for ambulation (Tr. 20, Finding No. 5). The ALJ expressly adopted the RFC 

proposed by a non-medical State Agency consultant, Paula Montgomery, which the ALJ 

declared to be “consistent with and supported by the information contained in Dr. 

Crotwell’s consultative examination report” and “the best evidence of record of the 

claimant’s physical capacities and limitations during the relevant period under 

consideration” (Tr. 21, citing Tr. 254-261). The ALJ’s hypothetical to the vocational 

expert was based upon Montgomery’s proposed RFC (Tr. 69-70) and based on the 

vocational expert’s testimony, the ALJ concluded that, although plaintiff’s residual 

functional capacity precluded him from performing any of his past relevant work (Tr. 23, 

Finding No. 6), there were other jobs which plaintiff could perform (Tr. 24, Finding No. 

10). Consequently, the ALJ found that plaintiff was not disabled as defined by the Social 

Security Act (Tr. 25, Finding No. 11). 

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B. Conclusions of Law. 

1. Standard of Review. 

In reviewing claims brought under the Act, this Court's role is a limited one. 

Specifically, the Court's review is limited to determining: 1) whether the decision is 

supported by substantial evidence, and 2) whether the correct legal standards were 

applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, 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). Rather, 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) (finding that substantial evidence is 

defined as “more than a scintilla but less than a preponderance,” and consists of “such 

relevant evidence as a reasonable person would accept as adequate to support a 

conclusion[ ]”). In determining whether substantial evidence exists, a court must view the 

record as a whole, taking into account evidence favorable as well as unfavorable to the 

Commissioner's decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). 

2. Sequential Evaluation Process. 

 An individual who applies for Social Security disability benefits or supplemental 

security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 

416.912. Disability is defined as the "inability to do any substantial gainful activity by 

reason of any medically determinable physical or mental impairment which can be 

expected to result in death or which has lasted or can be expected to last for a continuous 

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period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 

404.1505(a); 20 C.F.R. § 416.905(a). The Social Security regulations provide a five-step 

sequential evaluation process for determining if a claimant has proven their disability. 

See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must 

prove that he or she has not engaged in substantial gainful activity. At the second step, 

the claimant must prove that he or she has a severe impairment or combination of 

impairments. If, at the third step, the claimant proves that the impairment or combination 

of impairments meets or equals a listed impairment, then the claimant is automatically 

found disabled regardless of age, education, or work experience. If, however, the 

claimant cannot prevail at the third step, he or she must proceed to the fourth step where 

the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 

810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this 

burden, the examiner must consider the following four factors: (1) objective medical facts 

and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the 

claimant's age, education and work history. Id. at 1005. Once a claimant meets this 

burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant 

is capable of engaging in another kind of substantial gainful employment which exists in 

significant numbers in the national economy, given the claimant's residual functional 

capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th 

Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant 

can perform, the claimant must prove inability to perform those jobs in order to be found 

disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); see also Hale v. 

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Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562, 

1564 (11th Cir. 1985)). 

3. Discussion. 

a. The ALJ properly discounted Dr. Evans’ opinion. 

Plaintiff essentially argues that Dr. Evans’ opinion was entitled to controlling 

weight solely because he was plaintiff’s treating physician. Plaintiff’s Brief (Doc. 12) at 

6-9. Although he also alleges that Dr. Evans’ opinion is “well supported and not 

inconsistent with other substantial evidence in the case record” (Id. at 8), plaintiff never 

addresses the following inconsistencies identified by the ALJ: 

In the present case, a review of the documentary medical evidence of record 

reflects that Dr. Evans’ opinion in the PCE form are not supported or 

corroborated by the information contained in his treatment records. At the 

time he completed the PCE form on the claimant’s behalf, Dr. Evans had 

been treating the claimant for one year. However, a review of Dr. Evans’ 

treatment records reveals that, although Dr. Evans repeatedly noted in the 

treatment records that claimant’s musculoskeletal examination and/or 

examination of his lumbar/lumbosacral spine “exhibited abnormalities,” Dr. 

Evans never explained what those abnormalities were. The treatment 

records indicate that the claimant saw Dr. Evans for chronic back pain and 

was treated conservatively with prescribed medications but the treatment 

notes do [not] contain any specific clinical examination findings to support 

the harsh physical restrictions Dr. Evans placed on claimant’s activities in 

the PCE form. The undersigned further finds it necessary to discount Dr. 

Evans’ opinions in the PCE form due to internal inconsistencies within the 

form itself. For example, Dr. Evans placed no restriction on the claimant’s 

ability to use his arms and hands for repetitive grasping, pushing, pulling, 

or fine manipulation, yet he indicated that the claimant was unable to reach. 

Additionally, Dr. Evans indicated that the length of time claimant could sit, 

stand, and walk at one time was the same as the amount of time he could 

sit, stand, and walk during an 8-hour workday. Generally, an individual’s 

capacity for sitting, standing or walking at one time will be less than what it 

is for a full 8-hour workday. For all the foregoing reasons, the undersigned 

is unable to assign any significant evidentiary weight to Dr. Evans’ 

opinions regarding the claimant’s functional capacities and limitations. 

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(Tr. 21-22). Plaintiff neither addresses these inconsistencies nor attempts in any way to 

specifically demonstrate how the evidence of record could be deemed to be consistent 

with Dr. Evans’ opinions in the PCE form he completed. 

 Moreover, plaintiff often reported to Dr. Evans that his pain level was a “3” on a 

scale of 1 to 10 (Tr. 262, 266, 268, 272), which suggests that whatever pain plaintiff may 

have experienced was well controlled. See Dawkins v. Bowen, 848 F.2d 1211, 1213 

(11th Cir. 1988)(a medical condition that can be remedied by surgery, treatment, or 

medication is not disabling). 

 In addition, plaintiff does not dispute that Dr. Evans provided only conservative 

treatment in the form of prescribed medication; there is no indication that he ever 

considered or discussed other appropriate treatments such as physical therapy, injections, 

nerve root blocks or surgery. In Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996), 

the Eleventh Circuit found no error in the ALJ’s rejection of the claimant’s testimony 

about his pain because his “course of treatment for his spinal, heart and thyroid 

conditions during the period in issue were entirely conservative in nature.” See also, 

Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991)(“The treating physician's report 

may be discounted when it is not accompanied by objective medical evidence or is 

wholly conclusory.”); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)(Treating 

physician’s opinion was properly discounted because the clinical evidence contradicted 

the opinion). 

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 b. The ALJ erred in adopting the disability examiner’s opinion.

 The ALJ acknowledged that he considered opinion evidence which included “the 

findings of fact made by the State Agency medical and disability consultants . . . who 

completed an assessment of the claimant’s physical capacities and limitations based on a 

review of the evidentiary record as it existed in March, 2007” (Tr. 20). The ALJ 

specifically noted that, as non-examining sources, the State Agency consultants opinions 

were not entitled to controlling weight, but that “they can be considered and weighed as 

those of highly qualified sources who are experts in the evaluation of medical issues in 

disability claims under the Social Security Act” (Tr. 21). The ALJ specifically found that 

the consultants’ opinions were consistent with the credible medical evidence of record, 

including the information contained in Dr. Crotwell’s consultative examination report, 

while there existed no credible contradictory opinion from any treating or other 

examining source, including Dr. Evans’ opinion regarding plaintiff’s functional 

capacities and limitations which were inconsistent with the record as a whole and not 

fully substantiated by the evidentiary record (Tr. 21). The Eleventh Circuit has held that: 

[T]he ALJ did not err by giving substantial weight to the opinions of the 

non-examining physicians. The ALJ is required to consider the opinions of 

non-examining state agency medical and psychological consultants because 

they “are highly qualified physicians and psychologists who are also 

experts in Social Security disability evaluation.” 20 C.F.R. § 

404.1527(f)(2)(i). The ALJ may rely on opinions of non-examining sources 

when they do not conflict with those of examining sources. Edwards v. 

Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991). In this case, because those 

opinions did not conflict with the opinions of examining sources, the ALJ 

did not err in giving these opinions significant weight. 

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Milner v. Barnhart, 275 Fed.Appx. 947, 948 (11th Cir. 2008). See also Good v. Astrue, 

240 Fed.Appx. 399, 403 (11th Cir. 2007)(“[T]he ALJ was required to consider the 

findings of non-examining agency consultants, which also were inconsistent with 

Garcia's opinion) citing 20 C.F.R. § 404.1527(f)(2)(i); Jackson v. Astrue, 2010 WL 

2629486 (M.D. Ala. June 30, 2010)(“the ALJ may rely on opinions of non-examining 

sources when they do not conflict with those of examining sources”), citing Edwards v. 

Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991). However, in each of these cases, the 

non-examining source was a medical consultant. 

 In Foxx v. Astrue, 2009 WL 2899048 (S.D. Ala. Sept. 2, 2009), the court 

concluded that the opinion of a non-medical State Agency consultant is entitled to no 

weight. “[A] SDM is not a medical professional of any stripe, and a finding from such an 

individual is entitled to no weight as a medical opinion, or to consideration as evidence 

from other non-medical sources.” Foxx, 2009 WL 2899048 at * 7, citing, Bolton v. 

Astrue, 2008 WL 2038513 (M.D. Fla. May 12, 2008); Velasquez v. Astrue, 2008 U.S. 

Dist. LEXIS 64743, 2008 WL 791950 (D.C. Colo., Mar. 20, 2008); Casey v. Astrue, 

2008 WL 2509030 (S.D. Ala. June 19, 2008) (an RFC assessment completed by a 

disability specialist is entitled to no weight); Hall v. Astrue, 2007 U.S. Dist. LEXIS 

95776 (S.D. Ala. Nov. 7, 2007) (holding that the opinion of a disability examiner “simply 

does not supply the substantial evidence needed to support the ALJ's determination”.) 

 Although the ALJ referred to the consultative medical opinions of Dr. John T. 

Houston (Tr. 238-239) and Dr. William A. Crotwell (Tr. 294-296), which were based on 

each physician’s physical examination of the plaintiff, he expressly adopted the RFC 

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proposed by Paula Montgomery (Tr. 21). There is no evidence in this record that Ms. 

Montgomery is a qualified medical source. The ALJ, however, considered the 

Montgomery RFC (Tr. 254-261) to be the “the best evidence of record of the claimant’s 

physical capacities and limitations during the relevant period under consideration” (Tr. 

21). The Commissioner argued that the ALJ’s approach was proper because the 

Montgomery RFC was more restrictive than either Dr. Houston’s or Dr. Crotwell’s 

assessment, and because the RFC by plaintiff’s treating physician, Dr. Evans, was 

properly discounted. The Commissioner’s argument is appealing, but only on the 

surface. Upon closer scrutiny, the evidence reflects that Dr. Houston merely opined that 

his examination of the plaintiff revealed “[n]o impairments in ability to sit, stand for short 

periods, walk short distances, lift and carry light loads, handle light objects, hear or 

speak” (Tr. 239). Similarly, Dr. Crotwell merely opined that “this patient could carry out 

medium, could carry out light and could definitely carry out sedentary. He could work an 

eight hour day without any difficulty” (Tr. 296). Although the RFC adopted by the ALJ 

appears to place more restrictions and limitations on the plaintiff than Dr. Crotwell and 

Dr. Houston have imposed, there is no medical opinion, either by an examining or nonexamining medical source which supports the specific restrictions and limitations 

imposed by the ALJ. Consequently, the ALJ improperly accorded weight to Paula 

Montgomery’s proposed RFC and his determination that plaintiff could perform “a wide 

range of unskilled work at a light exertional level” (Tr. 24) is, therefore, not supported by 

substantial evidence. See, Collins v. Astrue, 2010 WL 2573510, * 4 (S.D. Ala. June 22, 

2010)(“The elimination of the Cardiologist's conclusions left the ALJ with an RFC which 

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has only support from a non-examining, non-medical source [which] ‘alone does not 

constitute substantial evidence to support an administrative decision’.”), quoting, Swindle 

v. Sullivan, 914 F.2d 222, 226 n. 3 (11th Cir. 1990); Jackson v. Astrue, 2010 WL 

2573508, * 7 (S.D. Ala. June 21, 2010)(“Given that the ALJ improperly accorded weight 

to the RFC assessment completed by a disability specialist, his determination that 

plaintiff has the RFC to perform the physical requirements of her previous work as a 

“housekeeper” is not supported by substantial evidence.”). Accordingly, the ALJ’s 

decision is not supported by substantial evidence and is due to be reversed and remanded. 

III. Conclusion. 

 For the reasons stated above, it is hereby RECOMMENDED that the decision of 

the Commissioner of Social Security denying plaintiff’s benefits be REVERSED and the 

case REMANDED for further proceeding not inconsistent with this decision. 

 In light of the foregoing, and the plain language of sentence four of 42 U.S.C. § 

405(g), the undersigned Magistrate Judge recommends that this cause be reversed and 

remanded pursuant to sentence four of § 405(g) for further proceedings. See Melkonyan 

v. Sullivan, 501 U.S. 89, 99-102 (1991)(Discussing distinction between sentence four and 

sentence six remand under 42 U.S.C. § 405(g).). A remand pursuant to sentence four of 

§ 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to Justice 

Act, 28 U.S.C. § 2412, and terminates this Court’s jurisdiction over this matter. See

Shalala v. Schaefer, 509 U.S. 292, 297 (1993)(A district court remanding a case pursuant 

to sentence four of § 405 must enter judgment in the case and may not retain jurisdiction 

over the administrative proceedings on remand.) 

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 The attached sheet contains important information regarding objections to this 

Report and Recommendation. 

 Done this 28th day of July, 2010. 

 /s/ Katherine P. Nelson 

 KATHERINE P. NELSON 

 UNITED STATES MAGISTRATE JUDGE 

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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. 

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 28th day of July, 2010. 

 /s/ Katherine P. Nelson 

 UNITED STATES MAGISTRATE JUDGE 

Case 1:09-cv-00606-KD-N Document 19 Filed 07/28/10 Page 17 of 17