IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BYRON A. YORK, : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 09-0623-CG-M

MICHAEL J. ASTRUE, : 

Commissioner of

Social Security, : 

Defendant. : 

REPORT AND RECOMMENDATION

 In this action under 42 U.S.C. § 1383(c)(3), Plaintiff seeks

judicial review of an adverse social security ruling which denied

a claim for Supplemental Security Income (hereinafter SSI). The

action was referred for report and recommendation pursuant to 28

U.S.C. § 636(b)(1)(B). Oral argument was waived in this action

(Doc. 17). Upon consideration of the administrative record and

the memoranda of the parties, it is recommended that the decision

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

and that judgment be entered in favor of Plaintiff Byron A. York

and against Defendant Michael J. Astrue.

This Court is not free to reweigh the evidence or substitute

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

1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial eviCase 1:09-cv-00623-CG-M Document 18 Filed 03/11/10 Page 1 of 6
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Plaintiff testified that he had received a Graduate Equivalency

Degree (Tr. 43). 

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dence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

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

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

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

At the time of the administrative hearing, Plaintiff was

thirty years old, had completed a high school education (Tr.

43),1 and had previous work experience as an ironworker or

structural steel worker (Tr. 44, 51). In claiming benefits,

Plaintiff alleges disability due to “near complete left brachial

plexus injury/palsy and status post partial thickness burn to the

left hand” (Doc. 13 Fact Sheet).

The Plaintiff filed an application for SSI on July 12, 2006

(Tr. 77-80). Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although he

was not able to perform his past relevant work, York was capable

of performing a full range of light work (Tr. 14-25). Plaintiff

requested review of the hearing decision (see Tr. 4-12) by the

Appeals Council, but it was denied (Tr. 1-3).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, York alleges

that: (1) The ALJ erred in rejecting his complaints of pain; (2)

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Because the Court finds that this claim has merit, there is no

need to discuss the other claims raised in this action.

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Plaintiff is unable to perform a full range of light work; and

(3) the ALJ’s decision is not supported by the testimony of the

Vocational Expert (Doc. 13). Defendant has responded to—and

denies—these claims (Doc. 14).

Plaintiff claims that the ALJ improperly determined that he

was able to perform a full range of light work.2 In making this

claim, York asserts that the ALJ has made a determination as to

his residual functional capacity (hereinafter RFC) for which

there is no medical support (Doc. 13, pp. 8-11). 

The Court notes that light work has been defined as follows:

Light work involves lifting no more than

20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. 

Even though the weight lifted may be very

little, a job is in this category when it

requires a good deal of walking or standing,

or when it involves sitting most of the time

with some pushing and pulling of arm or leg

controls. To be considered capable of

performing a full or wide range of light

work, you must have the ability to do

substantially all of these activities. If

someone can do light work, we determine that

he or she can also do sedentary work, unless

there are additional limiting factors such as

loss of fine dexterity or inability to sit

for long periods of time. 

20 C.F.R. § 416.967(b) (2009). The Court notes that the ALJ is

responsible for determining a claimant’s RFC. 20 C.F.R. §

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416.946 (2009).

In this action, the ALJ determined that although York was

unable to perform his past relevant work, he was capable of

performing a full range of light work (Tr. 21-24). The Court

notes that the ALJ points to no medical evidence as support for

this determination. The Court further notes that the ALJ

rejected the physical capacities evaluations of a non-examining

State Agency source (Tr. 21-22; cf. Tr. 157-64) and an examining

orthopaedic surgeon (Tr. 23; cf. Tr. 206, 209-11) in reaching his

decision. 

However, Chief Judge Granade, in this Court, has held that

“the Commissioner's fifth-step burden cannot be met by a lack of

evidence, or by the residual functional capacity assessment of a

non-examining, reviewing physician, but instead must be supported

by the residual functional capacity assessment of a treating or

examining physician.” Coleman v. Barnhart, 264 F.Supp.2d 1007,

1010 (S.D. Ala. 2003). The Court finds this holding to be

particularly relevant in the facts of this case as the evidence

demonstrates that a neurologist and an orthopedic surgeon who

examined him have indicated that Plaintiff has no use of his left

arm whatsoever (Tr. 147, 154). York testified that he is lefthand dominant (Tr. 51). While the ALJ may be correct that

Plaintiff can perform a full range of light work, there is no

medical evidence in the record to support the finding.

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Based on review of the entire record, the Court finds that

the Commissioner's decision is not supported by substantial evidence. Therefore, it is recommended that the action be reversed

and remanded to the Social Security Administration for further

administrative proceedings consistent with this opinion, to

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

of evidence regarding Plaintiff’s physical capabilities and

limitations. 

Furthermore, it is recommended that a final judgment be

entered ordering remand in this action pursuant to sentence four

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

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

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service

of this document, file specific written objections with the clerk

of court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar

an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

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

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

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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 11th day of March, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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