1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

TYRA INGRID HALL, * 

 * 

 Plaintiff, * 

 * 

vs. * CIVIL ACTION 09-00627-B 

 * 

MICHAEL J. ASTRUE, * 

Commissioner of * 

Social Security, * 

 * 

 Defendant. * 

ORDER 

 

 Plaintiff Tyra Ingrid Hall (“Plaintiff”) brings this action 

seeking judicial review of a final decision of the Commissioner 

of Social Security denying her claim for supplemental security 

income under Title XVI of the Social Security Act, 42 U.S.C. §§ 

1381 et seq. On June 17, 2010, the parties agreed to have the 

undersigned conduct any and all proceedings on this case. (Doc. 

19). Thus, this case was referred to the undersigned to conduct 

all proceedings and order the entry of judgment in accordance 

with 28 U.S.C. § 636(c) and Fed.R. Civ. P. 73. (Doc. ). Oral 

arguments were held on June 17, 2010. Upon careful 

consideration of the administrative record, the oral arguments, 

and the memoranda of the parties, the decision of the 

Commissioner is AFFIRMED. 

I. Procedural History

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 1 of 31
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 Plaintiff protectively filed an application for 

supplemental security income on March 20, 2007. (Tr. 110-112). 

Plaintiff alleges that she has been disabled since October 31, 

2006 due to the inability to bend her middle finger resulting 

from an injury, diabetes and diabetic neuropathy in her lower 

and upper extremities, chronic urinary tract infections and 

gastroparesis1. (Tr. 27-28, 110, 127). Plaintiff’s application 

was denied at the initial stage, and she filed a timely Request 

for Hearing before an Administrative Law Judge (“ALJ”). (Tr. 

65-66, 74). On December 16, 2008, Administrative Law Judge 

Linda J. Helm (“ALJ Helm”) held an administrative hearing, which 

was attended by Plaintiff, her representative, and a vocational 

expert. (Tr. 23-64). On February 3, 2009, ALJ Helm issued an 

unfavorable decision and found that Plaintiff is not disabled. 

(Tr. 12-22). Plaintiff’s request for review was denied by the 

Appeals Council (“AC”) on August 27, 2009. (Tr. 1-4). 

Accordingly, the ALJ’s decision became the final decision of the 

Commissioner in accordance with 20 C.F.R. § 404.981. Id. 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) 

and 1383(c)(3). 

 1

Gastroparesis is a paralysis of the muscles of the stomach, 

resulting in delayed emptying of food from the stomach into the 

small intestine. See www.medicinenet.com. Last visited May 

25, 2010. 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 2 of 31
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II. Issues on Appeal

 A. Whether the ALJ erred by assigning Plaintiff a 

residual functional capacity (“RFC”) of light work. 

 B. Whether the ALJ erred by failing to perform a 

function-by function analysis of Plaintiff’s limitations in 

violation of 20 C.F.R. § 404.1545(b) and SSR 96-8p. 

 C. Whether the ALJ erred in relying on the testimony of a 

VE to find that a significant number of jobs exist in the 

national economy that Plaintiff can perform. 

III. Factual Background

 Plaintiff was born on January 20, 1982 and has a tenthgrade education. (Tr. 29, 110). She worked for a month in 

2005 in the Section 8 office answering the phone, filing and 

cleaning. She also worked for three months in 2002 at Bebo’s 

Car Wash, cleaning out cars, and for a month in 2005, as a 

housekeeper at Holiday Inn. (Tr. 139-143, 162). 

 Plaintiff testified that she had to quit her housekeeping 

job because of gastroparesis, and that she has not worked since 

that time because she is sick all the time. (Tr. 33). She 

further testified that she is unable to work because she has 

out-of-control diabetes; neuropathy in her arm, left leg, and 

left arm; gastroparesis; and urinary tract infections. (Tr. 34, 

35, 44, 48). 

 According to Plaintiff, she cannot stand a long time 

because of neuropathy, and cannot grip or write with her right 

hand because of the injury to her right middle finger. (Tr. 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 3 of 31
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35). Plaintiff testified that she can walk about a block, stand 

for 15 or 20 minutes and sit with a cushion. (Tr. 37-38). 

Plaintiff also testified that she reads a lot during the day, 

and that she stays active by sewing clothes for people. (Tr. 

39-40, 46). 

IV. Analysis

 A. Standard Of Review

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

role is a limited one. The Court’s review is limited to 

determining 1) whether the decision of the Secretary 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).2

 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) (holding 

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 

 2

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). 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 4 of 31
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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); Short v. Apfel, 1999 U.S. DIST. LEXIS 10163 (S.D. 

Ala. 1999). 

 B. Discussion

 An individual who applies for Social Security disability 

benefits must prove his 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 expected to 

last for a continuous period of not less than twelve months.” 

42 U.S.C. §§ 423(d)(1)(A), 404.1505(a), 416.905(a). The Social 

Security regulations provide a five-step sequential evaluation 

process for determining if a claimant has proven her disability. 

20 C.F.R. §§ 404.1520, 416.920.3 

 3

The claimant must first prove that he or she has not 

engaged in substantial gainful activity. The second step 

requires the claimant to 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 the claimant cannot prevail 

at the third step, he or she must proceed to the fourth step 

where the claimant must prove an inability to perform their past 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 5 of 31
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 In the case sub judice, the ALJ determined that Plaintiff 

has not engaged in substantial gainful activity since March 20, 

2007, her application date. (Tr. 17). The ALJ also found that 

Plaintiff has the following severe impairments: diabetes 

mellitus with neuropathy, arthritis of the right middle finger, 

and history of gastroparesis. The ALJ concluded that 

Plaintiff’s impairments, though severe, do not meet or medically 

equal the criteria for any of the impairments listed in 20 

C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No. 4. (Tr. 17). 

The ALJ also found that Plaintiff retains the residual 

functional capacity (“RFC”) to perform light work with the 

following limitations: need to alternate positions at will, 

cannot engage in repetitive fine fingering with her right hand, 

and cannot work at unprotected heights or work around dangerous 

 

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, 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. Bowen, 

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

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

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 6 of 31
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moving machinery due to her history of diabetic neuropathy. 

(Tr. 17-18). The ALJ found that Plaintiff has no past relevant 

work. Relying on the testimony of the VE, the ALJ concluded 

that considering Plaintiff’s age, education, work experience and 

RFC, there are jobs that exist in significant numbers in the 

national economy that Plaintiff can perform; thus, she is not 

disabled. (Tr. 21-22). 

 The relevant medical evidence includes office notes from 

University of South Alabama Hospitals (hereinafter “USA”) from 

January 2007 through October 2008. Plaintiff was first seen at 

USA on January 2, 2007, with a right middle finger infection. 

Her physical exam was normal except for her right middle finger, 

described as septic proximal interphalangeal joint, having 

fusiform swelling, and held in a slightly flexed position. (Tr. 

175-176). An x-ray report on this day showed extensive 

destruction of the articulations of the third proximal 

interphalangeal joint along with associated soft tissue swelling 

consistent with osteomyelitis4

. (Tr. 188). She underwent an 

incision and debridement. (Tr. 177-178). On January 4, 2007, 

Plaintiff returned to USA for drainage of her infected right 

middle finger. (Tr. 179-180). 

 4 Osteomyelitis is inflammation of the bone due to infection. 

See www.medicinenet.com. Last visited June 4, 2010. 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 7 of 31
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 During Plaintiffs’ March 27, 2007 treatment at USA, her 

physical exam was normal except for right finger deformity. She 

was diagnosed with finger pain, and instructed to follow up with 

Stanton Road Clinic orthopedics. (Tr. 190-192). On March 31, 

2007, abdominal x-rays showed left pelvic calcifications, most 

likely representing phleboliths5

, and rounded soft tissue opacity 

within the left mid abdomen of unknown if any clinical 

significance. Plaintiff was diagnosed with constipation, and 

instructed to discontinue Lortab and Amitryptyline6

. (Tr. 193-

197). In a discharge summary dated April 3, 2007, Plaintiff was 

diagnosed with septic right middle finger, proximal 

interphalangeal joint. (Tr. 173). 

 Plaintiff was next seen at USA on December 8, 2007. The 

treatment notes reflect that as a result of domestic abuse, 

Plaintiff suffered a five inch laceration on the back of her 

right thigh with pain and reduced range of motion, and pain in 

the second and third digits of her right hand with swelling. An 

x-ray of her right hand showed no acute fractures, but partial 

fusion of the epiphyses surrounding the proximal interphalangeal 

joint of the third digit, with possible septic arthritis versus 

chronic arthritis with an acute injury. Her wounds were 

 5

A phlebolith is a calculus in a vein usually resulting from 

the calcification of an old thrombus. See www.nlm.nih.gov. 

(Last visited June 4, 2010.) 

6

 Amitryptyline is a tricyclic antidepressant. See www.drugs.com. 

(Last visited June 24, 2010). 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 8 of 31
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dressed, and she was instructed to follow-up at Stanton Road 

Clinic in seven days. (Tr. 204-213). She returned to USA on 

December 18, 2007 for staple removal. The treatment notes 

reflect that there was no sign of infection or drainage, and 

that she received a tetanus shot. (Tr. 200-203). 

 Plaintiff was treated at USA on July 29, 2008. Her physical 

examination was normal, except for 10/10 chest pain and her left 

second finger. An ECG on this day resulted in normal findings. 

Her glucose was elevated, and her chest x-ray was normal. (Tr. 

259-270). Plaintiff returned to USA on August 7, 2008, and her 

physical exam was normal except for tenderness to palpation over 

the epigastric area. An x-ray of her abdomen resulted in no 

acute findings, and her glucose count was high. She was 

counseled about strict diabetic control. (Tr. 245-258). During 

an August 21, 2008 visit to USA, Plaintiff’s physical exam was 

normal, and an abdominal x-ray resulted in no acute findings. 

Her glucose was high. (Tr. 234-244). On August 28, 2008, 

Plaintiff was seen at USA, and was diagnosed with subjective 

left upper quadrant edema. (Tr. 228-233). 

Plaintiff was admitted to USA on October 15, 2008. Her 

physical exam was normal except for tenderness to palpation in 

the suprapubic area and left flank, non-fluctuant areas on her 

right pelvis and on her right inner thigh. She was diagnosed 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 9 of 31
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with acute pyelonephritis7; nausea with possible gastroparesis; 

diabetes mellitus; vaginal discharge; chlamydia8; and two areas 

of cellulitis versus folliculitis. She was prescribed insulin, 

Reglan9, Zofran10, Levaquin11; and Clindamycin12. (Tr. 271-272). 

Upon discharge on October 16, 2008, Amy Woodward, M.D., reported 

that Plaintiff’s principal diagnosis was acute 

pyelonephritis/urinary tract infection, and secondary diagnoses 

were diabetes mellitus, gastroparesis, peripheral neuropathy, 

and hypertension folliculitis. Plaintiff was instructed to 

follow-up with Dr. Woodward at Stanton Road Clinic in two weeks. 

(Tr. 273). 

 7 Pyelonephritis inflammation of both the parenchyma of a 

kidney and the lining of its renal pelvis especially due to 

bacterial infection. See www.nlm.nih.gov. (Last visited June 

4, 2010). 

8 Chlamydia is a type of bacteria that causes an infection, 

and is spread through sexual contact. See www.medicinenet.com. 

(Last visited June 4, 2010). 

9 Reglan is used for the short term treatment of 

gastroesophageal reflux disease in patients who do not respond 

to other therapy. See www.drugs.com. (Last visited June 4, 

2010). 

10 Zofran is used to prevent nausea and vomiting. See

www.drugs.com. (Last visited June 4, 2010). 

11 Levaquin is an antibiotics used to treat infections caused 

by certain bacteria. See www.drugs.com. (Last visited June 4, 

2010).

12 Clindamycin is an antibiotic used to treat serious 

infections caused by bacteria. See www.drugs.com. (Last visited 

June 4, 2010).

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 10 of 31
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 On December 1, 2008, Dr. Woodward completed a Diabetes 

Questionnaire, and opined that clinical findings of elevated 

blood glucose and Hglo A/C on several occasions supported a 

diagnosed of type 2 diabetes that is not in good control. She 

further opined that Plaintiff suffers from physical limitations 

due to her disease, including severe diabetic neuropathy in her 

bilateral lower extremities and mild diabetic neuropathy in her 

bilateral hands. Dr. Woodward opined that Plaintiff has 

suffered from chronic lower extremity ulcers for over a year, 

which cause significant pain, worsening neuropathy and impaired 

glucose control. In response to a question about Plaintiff’s 

ability to be employed, Dr. Woodward opined that Plaintiff’s 

physical limitations would play a significant role in preventing 

strenuous activity for an extended period of time, and that 

“light duty without physical labor” would be the safest course. 

(Tr. 296-297). 

 The record reflects that Plaintiff was also treated at 

Mobile County Health Department (hereinafter “MCHD”) from August 

5, 2008 through August 18, 2008. The MCHD records reflect that 

on August 5, 2008, Plaintiff’s physical exam was normal, and 

that her cholesterol, hemoglobin and glucose levels were 

elevated. She was counseled on cholesterol counting and aerobic 

exercise, and was scheduled for diabetes mellitus nutrition and 

self blood glucose monitoring classes. (Tr. 217-220, 222-227). 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 11 of 31
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Plaintiff returned to MCHD on August 18, 2008 for an evaluation 

of her blood sugar. Her physical exam was normal, and her 

glucose was high. She was diagnosed with poorly controlled 

diabetes mellitus, instructed on the use of the “quik pen” and 

was referred for a diabetes study. (Tr. 214-216, 221). 

 Plaintiff was also treated at Stanton Road Clinic from 

October 15, 2008 through December 1, 2008. The records dated 

October 15, 2008 reflect that Plaintiff’s physical exam was 

normal except for a small area on her left leg, tender to 

palpation of mid-epigastric area and lower quadrants, and pain 

and tenderness in the left flank. (Tr. 291-292). Plaintiff 

returned to Stanton Road Clinic on October 30, 2008. The notes 

reflect that Plaintiff had just been discharged from the 

hospital with pyelonephritis/urinary tract infection, with a 

history of diabetes mellitus and peripheral neuropathy. Also 

noted is Plaintiff’s history of right hand middle finger 

surgery. Plaintiff’s physical exam was normal except for a two 

to three cm diameter painful closed ulcer on her right shin. 

Plaintiff was diagnosed with diabetes mellitus, peripheral 

neuropathy, and chronic arthritis in right finger. She was 

prescribed Amitriptyline and her insulin prescription was 

renewed. (Tr. 289-290). During a follow-up visit on December 1, 

2008, Plaintiff’s physical exam was normal except for chronic 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 12 of 31
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lesions on her skin. She was counseled on her diet and 

prescribed Metformin13 and Nova log. (Tr. 287-288). 

1. Whether the ALJ erred by assigning Plaintiff a residual 

functional capacity (“RFC”) of light work. 

 Plaintiff contends that the ALJ erred in finding that she has 

the RFC to perform light work. According to Plaintiff, the 

ALJ’s findings that Plaintiff must alternate sitting and 

standing and that she is limited in her ability to do repetitive 

fine fingering with her right hand, contradict her finding that 

Plaintiff can perform light work. 

 Defendant argues that the ALJ did not find that Plaintiff was 

restricted to work with a sit/stand option, but rather found 

that Plaintiff is restricted to work allowing her to change 

positions at will. He further argues that the loss of fine 

dexterity is a non-exceptional limitation that is an additional 

limiting factor to light work, and that the ALJ correctly 

enlisted the testimony of a VE to determine if jobs exist in the 

national economy that Plaintiff can perform with these 

limitations. 

 In determining Plaintiff’s residual functional capacity, 

the ALJ stated as follows: 

 13Metformin is an oral diabetes medicine that helps control 

blood sugar levels. See www.drugs.com. (Last visited June 24, 

2010). 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 13 of 31
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 I find that the claimant has the residual functional 

capacity to perform light work as defined in 20 CFR 

416.967(b) except the claimant has to periodically 

change positions, she cannot do repetitive fine 

fingering with her right hand, and she cannot work at 

unprotected heights or around dangerous moving 

machinery because of her history of diabetic 

neuropathy. 

(Tr. 17-18). 

 Based on this RFC, the ALJ then found that Plaintiff could 

perform other work, as follows: 

[T]he claimant’s ability to perform all or 

substantially all of the requirements of this level of 

work has been impeded by additional limitations. To 

determine the extent to which these limitations erode 

the unskilled light occupational base, I asked the 

vocational expert whether jobs exist in the national 

economy for an individual with the claimant’s age, 

education, work experience, and residual functional 

capacity. The vocational expert testified that given 

all of these factors the individual would be able to 

perform the requirements of representative occupations 

such as: mail clerk, which exists in numbers of 1,700 

in the regional economy and in numbers of 141,000 in 

the national economy; linen grader, which exists in 

numbers of 1,100 in the regional economy and in 

numbers of 515,000 in the national economy; and 

photographer finisher, which exists in numbers of 

10,000 in the regional economy and in numbers of 

549,000 in the national economy. 

 

(Tr. 21). 

 It is the task of the ALJ to determine a claimant’s RFC. 

See, e.g., Phillips v. Barnhart, 357 F.3d 1232, 1238-1239 (11th 

Cir. 2004). RFC is what the claimant is still able to do 

despite her impairments, and is based on all relevant medical 

and other evidence. 20 C.F.R. §§ 404.1545, 404.1520(e). An RFC 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 14 of 31
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can contain both exertional and nonexertional limitations. 

Phillips, 357 F.3d at 1242-1243. These limitations include a 

restriction to a particular physical exertion level (light, 

medium or heavy) and a particular skill level (unskilled, semiskilled or skilled). 20 C.F.R. §§ 404.1567-1568. Each level is 

defined by regulation. Id. The RFC determination is used both 

to determine whether the claimant: 1) can return to her PRW 

under the fourth step; and 2) can adjust to other work under the 

fifth step. 20 C.F.R. § 404.1520(e). Thus, in determining 

whether Plaintiff can return to her PRW, the ALJ must determine 

her RFC using all relevant medical and other evidence in the 

case. 20 C.F.R. § 404.1520(e). That is, the ALJ must determine 

if the claimant is limited to a particular work level. 20 

C.F.R. § 404.1567. Once the ALJ assesses the claimant’s RFC and 

determines that she cannot return to her PRW, the ALJ moves on 

to the fifth, and final, step. 

 In the present case, Plaintiff’s arguments regarding the 

ALJ’s determination of her RFC must fail. First of all, the ALJ 

did not find that Plaintiff could perform a full range of light 

work, as implied by Plaintiff. Rather, the ALJ specifically 

found that Plaintiff could perform light work, but that she is 

limited by her need to periodically change positions, her 

inability to do repetitive fine fingering with her right hand 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 15 of 31
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and her inability to work at unprotected heights or around 

dangerous moving machinery. 

 Secondly, Plaintiff’s argument that these additional 

limitations somehow preclude her ability to perform any light 

work is simply incorrect. While Plaintiff’s inability to 

perform a full range of light work precludes the use of the 

Medical Vocational Guidelines (“grids”) in making a 

determination of disability, it does not mean that there is no 

light work which she can perform. The general rule is that 

“exclusive reliance on the grids is not appropriate either when 

[the] claimant is unable to perform a full range of work at a 

given residual functional level or when a claimant has nonexertional impairments that significantly limit basic work 

skills.’” Phillips, 357 F.3d at 1242 (11th Cir. 2004) (quoting 

Francis v. Heckler, 749 F. 2d 1562, 1566 (llth Cir. 1985)). In 

such instances, the preferred method of demonstrating that the 

claimant can perform other jobs is through the testimony of a 

vocational expert. Perry v. Astrue, 280 Fed. Appx. 887, 2008 

U.S. App. LEXIS 12285 (llth Cir. June 4, 2008); Jones v. Apfel, 

190 F.3d 1224, 1229 (11th Cir. 1999) (unpublished). 

 Here, the ALJ thoroughly discussed the record evidence, 

including the medical evidence and Plaintiff’s testimony, and 

found that Plaintiff is able to perform some, but not all, of 

the requirements of light work; thus, exclusive reliance on the 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 16 of 31
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grids was not appropriate. The ALJ then elicited vocational 

testimony to determine whether Plaintiff could perform other 

jobs in the national economy. Relying upon the testimony of the 

VE, the ALJ found that Plaintiff could perform jobs in the 

national economy that are performed with her RFC. Accordingly, 

the undersigned finds that ALJ’s determination that Plaintiff is 

limited to light work, with additional limitations, and her use 

of VE testimony to determine that Plaintiff can perform other 

work, was not error. 

2. Whether the ALJ erred by failing to perform a 

 function-by-function analysis of Plaintiff’s 

 limitations in violation of 20 C.F.R. 

 § 404.1545(b) and SSR 96-8p.

 Plaintiff argues that the ALJ did not properly consider all 

of her work-related functions as required by 20 CFR § 

404.1545(b) and Social Security Ruling 96-8p: Titles II and XVI: 

Assessing Residual Functional Capacity in Initial Claims. (“SSR 

96-8p”). According to Plaintiff, the ALJ erred in failing to 

make specific findings regarding Plaintiff’s ability to sit; 

stand; walk; lift; carry; or use hands, fingers, legs or feet. 

She further argues that the ALJ failed to make a specific 

finding of any postural or environmental limitations. 

 Defendant counters that the hypothetical questions that ALJ 

posed to the VE, and relied upon in her decision, included the 

ability to lift/carry 20 pounds occasionally and 10 pounds 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 17 of 31
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frequently, and included restrictions from working at 

unprotected heights or around dangerous equipment, from work 

requiring repetitive fine fingering with the right hand, and the 

need to alternate positions. Defendant also argues that the 

record does not support restrictions on Plaintiff’s ability to 

sit, stand or walk such that a specific finding as to those 

activities was required under SSR 96-8p. As for Plaintiff’s 

need to change positions, Defendant argues that Plaintiff’s need 

to “change positions at will” is different from a sit/stand 

option, such that the SSR 96-6p14 requirement that specific times 

be assigned to each position is not applicable. 

 "The RFC assessment is a function-by-function assessment 

based upon all of the relevant evidence of an individual's 

ability to do work-related activities." SSR 96-8p. In Freeman 

v. Barnhart, 220 Fed. Appx. 957, 959-60 (11th Cir. 

2007)(unpublished), the Eleventh Circuit held that an ALJ's 

failure to "more specific[ally] and explicit[ly]" set forth his 

findings with respect to a claimant's “functional limitations 

and work-related abilities on a function-by-function basis” is 

excusable where it is apparent the ALJ did "consider all of the 

evidence."; See also Chavez v. Astrue, 276 Fed. Appx. 627, 627-

 14 Titles II and XVI: Consideration of Administrative 

Findings of Fact by State Agency Medical and Psychological 

Consultants and Other Program Physicians and Psychologists at 

the Administrative Law Judge and Appeals Council Levels of 

Administrative Review; Medical Equivalence (“SSR 96-6p”). 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 18 of 31
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28 (9th Cir. 2008) ("Chavez claims that the ALJ committed legal 

error by determining his mental residual functional capacity 

without performing a function-by-function assessment as required 

by Social Security Ruling 96-8p, 1996 SSR LEXIS 5. This claim 

fails because the ALJ considered and noted 'all of the relevant 

evidence' bearing on Chavez's 'ability to do work-related 

activities,' as required by the function-by-function analysis.") 

(internal citations omitted). 

 In this case, the ALJ summarized all the evidence, and 

after careful consideration of the entire record, found that 

Plaintiff has the residual functional capacity to perform light 

work as defined in 20 CRF 404.1567(b) and 416.967(b)15, and 

further found that Plaintiff needs to periodically change 

positions, and is precluded from any repetitive fine fingering 

with her right hand or work at unprotected heights or around 

dangerous moving machinery. In establishing Plaintiff’s RFC, 

the ALJ took into consideration Plaintiff’s limitations and 

assigned controlling weight to the opinion of Plaintiff’s 

treating physician, Dr. Woodward, who opined that although 

Plaintiff experiences severe diabetic neuropathy in her 

bilateral lower extremities, she is capable of performing light 

 15 Light work involves sitting two hours and walking and 

standing six hours in an eight-hour day, and lifting no more 

than 20 pounds at a time. See 20 C.F.R. § 416.967(b)(2009); 

Social Security Ruling (“S.S.R.”) 83-10. 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 19 of 31
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work. While Dr. Woodward opined that Plaintiff should avoid 

strenuous activity, there is nothing in Dr. Woodward’s 

assessment or the medical records which suggest that Plaintiff’s 

RFC is less than that established by the ALJ. Based upon a 

review of the record, the undersigned finds that substantial 

evidence supports the ALJ’s finding with respect to Plaintiff’s 

RFC as she properly and clearly considered all of the evidence 

regarding Plaintiff’s functional capabilities, including 

Plaintiff’s own assertions and the medical records, in making 

the RFC determination, and thereby complied with SSR 96-8p. The 

fact that the ALJ did not expressly address each functional 

ability, such as the ability to sit; stand; walk; lift; or carry 

is of no moment where the record clearly demonstrates that the 

ALJ considered all of the evidence, and further establishes that 

Plaintiff has the RFC set forth by the ALJ. 

3. Whether the ALJ erred in relying on the testimony 

 of a VE to find that a significant number of jobs 

 exist in the national economy that Plaintiff can 

 perform. 

 Plaintiff argues that the ALJ erred in relying on the VE’s 

testimony that Plaintiff could perform the linen grader and 

photographer finisher jobs because both positions involve 

significant handling and frequent fingering, and the ALJ found 

that Plaintiff cannot perform repetitive fingering with her 

dominant right hand. (Doc. 13 at 7-8). Plaintiff argues that 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 20 of 31
21 

relying on the VE’s testimony was erroneous for the additional 

reasons that the VE did not distinguish between part-time and 

full-time positions when testifying about the jobs that are 

available in the national economy and because the DOT 

descriptions for the mail clerk, linen grader and photographer 

finisher jobs do not include any allowance for changing 

positions. (Doc. 13 at 7-9). 

 Defendant counters that the ALJ properly relied on VE 

testimony where Plaintiff’s restriction of no repetitive fine 

fingering on the right hand represents a non-exertionnal 

limitation. Defendant further contends that Plaintiff can 

perform the jobs identified by the VE notwithstanding her 

fingering restriction because two of the jobs only require a low 

degree of fingering aptitude and the third job requires only a 

medium degree of fingering aptitude. (Doc. 15 at 17). With 

respect to Plaintiff’s argument that the descriptions for mail 

clerk, linen grader and photographer finisher do not include an 

allowance for changing positions, Defendant argues that SSR 00-

4p16 requires the adjudicator to elicit a reasonable explanation 

for an “apparent unresolved conflict between vocational expert 

evidence and the DOT”, and where the DOT is silent regarding 

 16 Social Security Ruling 00-4p: TITLES II AND XVI: Use Of 

Vocational Expert And Vocational Specialist Evidence, And Other 

Reliable Occupational Information In Disability 

Decisions(hereinafter “SSR 00-4p”). 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 21 of 31
22 

whether the occupations allow for a change of positions, VE 

testimony is appropriate. (Doc. 15 at 18). Finally, Defendant 

contends that Plaintiff’s argument that the VE’s testimony was 

flawed because the VE was not able to distinguish between the 

number of full-time and part-time jobs in the jobs she 

identified as existing in the national economy is without merit. 

According to Defendant, the VE testified that the information 

she used to supply the numbers was the best information 

available, and that she relied on this information as a 

vocational specialist. (Doc. 15 at 18). 

 The record reflects that a VE was present at the 

administrative hearing, and that the ALJ posed various 

hypotheticals to her. Before doing so, the following exchange 

took place between the ALJ and the VE: 

Q: I would ask, Ms. Gillespie, that if at any time 

today your testimony is going to deviate or be 

different than the information that’s contained in the 

Dictionary of Occupational Titles that you would bring 

it to my attention. 

A: Yes, ma’am. 

(Tr. 49). 

 The AJL then proceeded to pose several hypotheticals 

to the VE, including the following: 

 

Q: Let’s assume that we have an individual with the 

same work history as Ms. Hall and let’s assume that I 

find that the individual is limited from performing 

the following: lifting and carrying no more than 20 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 22 of 31
23 

pounds occasionally and 10 pounds frequently; and 

could not perform any repetitive fine fingering with 

the right dominant hand, no other real restrictions on 

the use of the hand just can’t do repetitive fine 

fingering. 

A: Your Honor, the jobs that she did in the 

automobile detail as its performed in the national 

labor market is considered medium work and that would 

exceed the exertional demands that we’ve discussed. 

The work that she did as a general clerk or an office 

clerk would require fingering, but only at, at the 

frequent level it would not necessarily require -- you 

said no repetitive fine fingering,- - 

Q: Right 

A: -- so -- 

Q: No repetitive 

A: Right. It does require some finger dexterity, it 

does require fingering, but not necessarily to the 

point -- if, if she can’t do any repetitive, she 

probably could still go back to that position because- 

- 

Q: Okay. 

A: -- it includes several different tasks. 

Q: Okay 

A: The other two jobs; the telephone solicitor 

certainly is going to require her to be on a computer 

for most of the shift and if she’s unable to do 

repetitive fingering that probably would need to be 

eliminated, the housekeeping cleaner position would be 

realistic given, the limitations that you’ve 

described. 

Q: Would be something that she could co[sic]? 

A: Yes, Ma’am. Would be. 

Q: Now I’m going to take it to the next step and ask 

 about other jobs. In your opinion, are there any jobs 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 23 of 31
24 

 in the region or in several regions in the Country 

 that an individual with the same work history as Ms. 

 Hall and that is a younger individual with a limited 

 education, able to perform? 

 A: Yes, ma’am. Looking predominantly at unskilled 

 occupations in light of her education level one 

 example would be a garment folder; the DOT code is 

 789.687-066, this is unskilled, light work with 

 approximately 524,000 nationally and 10,000 in the 

 State of Alabama. A second example would be a 

 cafeteria attendant; the DOT code is 311.677-010, 

 again, this is unskilled, light work with 

 approximately 431,000 nationally and 2600 in the State 

 of Alabama. A third example would be a mail clerk; 

 the DOT code is 209.687- 026, again, this is 

 unskilled, light work with approximately 188,000 

 nationally and 2,000 in the State of Alabama. 

 Q: Now if I had the, the same restrictions, but the 

 individual would need to change positions from sitting 

 to standing, or standing to sitting, or whatever, 

 would have to be able to change positions, would that 

 impact this job base that you’ve identified? 

 A: Yes, ma’am, it would. The cafeteria attendant 

position the individual performing that is going to be 

on their feet throughout their workday and that’s 

not a job that could be modified for them to be able 

to perform the basic functions of the job if they have 

to be able to sit down periodically. The garment 

folder and the mail clerk position with some 

modification certainly – actually the mail clerk 

position, actually, is going to have alteration in 

sitting and standing built into the job and the 

garment folder certainly could be modified to 

include that. 

 Q: Would there be other jobs? 

 A: Yes, ma’am. 

 Q: Could you identify some for me please? 

 A: Yes, ma’am. One example is an outside deliverer; 

 the DOT code is 230.663-010, again, this is 

 unskilled, light work and would actually have the 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 24 of 31
25 

 positional changes built into the job as it’s 

 usually performed, there are approximately 141,000 

 nationally and 1700 in the State of Alabama. . . . 

 Another example would be a linen grader; the DOT code 

 is 361.687-022, this again is unskilled, light work 

 with approximately 515,000 nationally and 11,000 in 

 the State of Alabama. Okay. A third example would be 

 a photograph finisher; the DOT code is 976,487-010, 

 again, this is unskilled, light work with 

 approximately 549,000 nationally and 10,000 in the 

 State of Alabama. 

(Tr. 51-53). 

 In the case sub judice, the undersigned observes that it is 

not clear that there exists a conflict in the VE’s testimony and 

the DOT. While the DOT lists “Frequent Fingering, at up to 1/3 

to 2/3 of the time” for the positions of mail ckerk, linen 

grader, and photographer finisher17, the DOT does not make clear 

 17 209.687-026 MAIL CLERK (clerical) alternate titles: 

 mailroom clerk; mail sorter; postal clerk 

DEFINITION: 

Sorts incoming mail for distribution and dispatches 

outgoing mail: Opens envelopes by hand or machine. 

Stamps date and time of receipt on incoming mail. 

Sorts mail according to destination and type, such as 

returned letters, adjustments, bills, orders, and 

payments. Readdresses undeliverable mail bearing 

incomplete or incorrect address. Examines outgoing 

mail for appearance and seals envelopes by hand or 

machine. Stamps outgoing mail by hand or with postage 

meter. May fold letters or circulars and insert in 

envelopes [FOLDING-MACHINE OPERATOR (clerical) 

208.685-014]. May distribute and collect mail. May 

weigh mail to determine that postage is correct. May 

keep record of registered mail. May address mail, 

using addressing machine [ADDRESSING-MACHINE OPERATOR 

(clerical) 208.582-010]. May be designated according 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 25 of 31
26 

 

to type of mail handled as Mail Clerk, Bills 

(clerical). 

GOE: 07.05.04 

 

 In the section delineating physical tasks, “Fingering: 

Frequently-Exists from 1/3 to 2/3 of the time” is also listed. 

 361.687-022 LINEN GRADER (laundry & rel.) 

DEFINITION: 

Grades laundered towels and similar linens according 

to quality, condition, and kind of item. Ties them 

into bundles of specified size or number of articles 

and records contents of each bundle. Stores bundles in 

bins for delivery to customers of linen-rental 

service. 

GOE: 06.03.02 

In the section delineating physical tasks, “Fingering: 

Frequently-Exists from 1/3 to 2/3 of the time” is also listed. 

976.487-010 PHOTOGRAPH FINISHER (photofinishing) 

alternate titles: print finisher 

DEFINITION: 

 

Performs any combination of following tasks to dry, 

trim, and mount photographic prints: Places washed 

print on conveyor leading to heated rotating cylinder 

that dries and flattens print. Trims print edges, 

using paper cutter or scissors. Inserts print in 

specified frame or mounts print on material, such as 

paper, cardboard, or fabric, using cement or hand 

operated press. Inserts print and corresponding 

negative in customer envelope. Computes price of 

order, according to size and number of prints, and 

marks price on customer envelope. May cut film 

lengthwise to separate individual print rolls, using 

slitting machine. 

GOE: 05.10.05 

In the section delineating physical tasks, “Fingering: 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 26 of 31
27 

whether repetitive fine fingering (for both hands) is required 

for these positions. The DOT is also silent with respect to 

whether these positions can be performed with the option to 

alternate positions at will. As noted supra, the VE opined that 

a person with Plaintiff’s RFC, age, skill, and educational level 

could perform all three positions. A VE is an expert on the 

kinds of jobs an individual can perform based on his or her 

capacity and impairments. “A VE can assess the effect of any 

limitation on the range of work at issue (e.g. the potential 

occupational base); advise whether the impaired person’s RFC 

permits him or her to perform substantial numbers of occupations 

within the range of work at issue; identify jobs which are 

within the RFC, if any exist; and provide a statement of the 

incidence of such jobs in the region in which the person lives 

or in several regions of the country.” Phillips, 357 F. 3d at 

1240 (quoting 1983 SSR LEXIS 32 at 6, 1983 WL 31253 at 3.) 

 Furthermore, SSR 00-4p, 2000 SS R Lexis 8, states in 

relevant part, as follows: 

Occupational 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 

 

Frequently-Exists from 1/3 to 2/3 of the time” is also listed. 

 

 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 27 of 31
28 

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 

hearing 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. 

 Following promulgation of SSR 00-4p, a panel of the 

Eleventh Circuit was presented with the question of whether an 

ALJ erred when he relied on the testimony of a VE without 

eliciting an explanation about an alleged “apparent unresolved 

conflict” between the testimony of the VE and the DOT as 

required by SSR 00-4p. Miller v. Commissioner, 246 Fed. Appx. 

660; 2007 U.S. App. LEXIS 21153 (llth Cir. 2007)(unpublished). 

In rejecting the plaintiff’s claim, the panel held “[e]ven 

assuming that an inconsistency existed between the testimony of 

the Vocational Expert and the DOT, the ALJ did not err when, 

without first resolving the alleged conflict, he relied on the 

testimony of the Vocational Expert. Our precedent establishes 

that the testimony of a vocational expert ‘trumps’ an 

inconsistent provision of the the DOT in this circuit.” See

Jones, 190 F. 3d at 1290-30. Id. The panel also held that 

agency rulings do not bind the court. Id. 

 As previously noted, the undersigned finds that in this 

case, it is not clear that a conflict exists between the 

testimony of the VE and the DOT where the DOT is silent with 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 28 of 31
29 

respect to whether repetitive fine fingering (for both hands) is 

required for the linen grader, photographer finisher and mail 

clerk positions, and whether the need to alternate positions at 

will can be accommodated within these positions. Additionally, 

Plaintiff has not established that the ALJ violated SSR 00-4p. 

The ALJ expressly requested that the VE apprise her if the VE’s 

testimony deviated from the DOT. The VE did not advise the ALJ 

of any conflicts, apparent or otherwise, and during the hearing, 

Plaintiff counsel did not allege that there existed any 

conflicts nor did he question the VE regarding any purported 

conflicts. Because no conflicts were identified, the ALJ was 

not required under SSR 00-4p to elicit a reasonable explanation 

from the VE as to any apparent conflicts, and did not err in 

relying on the VE’s testimony to conclude that Plaintiff was 

capable of performing the positions. See Cammon v. Astrue, 2009 

U.S. Dist. LEXIS 92293 (N.D. Ga. Oct. 2, 2009)(the ALJ did not 

err when she relied on the testimony of the VE where the ALJ had 

no reason to believe that there was any conflict between the VE 

testimony and the DOT and counsel did not question the VE about 

any alleged conflict.); Buchholtz v. Barnhart, 98 Fed. Appx. 

540, 546 (7th Cir. 2004)(while the ALJ has a duty to question a 

VE about any inconsistencies with the DOT and resolve that 

conflict before relying on the VE's testimony, counsel has the 

responsibility for raising the issue if the ALJ does not.) 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 29 of 31
30 

Finally, Plaintiff’s argument that the ALJ erred in relying 

on the VE testimony in determining that Plaintiff could perform 

other work, because the number of jobs identified by the VE 

could not be distinguished between part-time and full-time, is 

also unpersuasive. First of all, Plaintiff has not cited any 

authority which requires the VE to distinguish between full-time 

and part-time positions. Moreover, testimony from a vocational 

expert is “highly valued and commonly obtained in order to 

establish the availability of suitable alternative jobs for 

disability claimants.” Holley v. Chater, 931 F. Supp. 840, 851 

(S.D. Fla. 1996), citing Decker v. Harris, 647 F.2d 291, 298 (2d 

Cir. 1981). Additionally, at the hearing in this case, the VE 

testified that the information she provides is based on the DOT, 

and that her computerized version of the DOT is linked to 

outlook information, which she updates by inputting information 

from the Federal Department of Labor and Bureau of Labor. (Tr. 

56). 

 In sum, the undersigned finds that the ALJ properly relied 

on the VE’s testimony to conclude that Plaintiff is not 

disabled, and her decision is supported by substantial evidence. 

See Orestano v. Comm. of Soc. Sec. Admin, 252 Fed. Appx. 962, 

963, 2007 U.S. App. LEXIS 25677, at *2-3 (11th Cir. Oct. 31, 

2007) (holding that where the ALJ found the claimant capable of 

performing a significant, but not full, range of sedentary work, 

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 30 of 31
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and used a VE to determine whether there were a significant 

number of jobs in the national economy that Plaintiff could 

perform, he applied the correct legal standards and did not 

err). 

V. Conclusion

 For the reasons set forth, and upon careful consideration 

of the administrative record and memoranda of the parties, the 

decision of the Commissioner of Social Security, denying 

Plaintiff’s claim for disability insurance benefits, is 

AFFIRMED. 

 DONE this 29th day of June, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00627-B Document 21 Filed 06/29/10 Page 31 of 31