IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

KATHLEEN R. JACKSON, : 

Plaintiff, : 

vs. : CA 09-0807-C 

MICHAEL J. ASTRUE, : 

Commissioner of Social Security, 

: 

Defendant. 

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. ' 1383(c)(3), seeking judicial 

review of a final decision of the Commissioner of Social Security denying her claim for 

supplemental security income benefits. The parties have consented to the exercise of 

jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. 636(c), for all proceedings in 

this Court. (Doc. 19 (AIn accordance with the provisions of 28 U.S.C. 636(c) and 

Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge 

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

and conduct all post-judgment proceedings.@); see also Doc. 20 (order of reference)) 

Upon consideration of the administrative record, plaintiff=s brief, the Commissioner=s 

brief, and the parties= arguments at the June 15, 2010 hearing before the Court, it is 

determined that the Commissioner=s decision denying plaintiff benefits should be reversed 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 1 of 20
2 

and remanded for further proceedings not inconsistent with this decision.1

Plaintiff alleges disability due to depression, chronic back pain, and anemia. The 

Administrative Law Judge (ALJ) made the following relevant findings: 

2. The claimant has the following severe impairments: Anemia and 

Depression secondary to a general medical condition. (20 CFR 416.921 

et seq.).

. . . 

The claimant alleges an inability to work because of a combination of 

physical and mental health problems including anemia, back pain, myalgias, 

severe headaches, and difficulty concentrating. 

. . . 

At the request of the Social Security Administration, the claimant 

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

March, 2007. Dr. Houston noted that the claimant=s primary complaint was 

low back pain, for which she had not had any regular medical treatment. On 

physical examination of the claimant, Dr. Houston noted that the claimant 

had some decreased range of motion in her dorsolumbar spine, bilateral 

wrist tenderness, and bilateral knee crepitus, but he found no other 

abnormalities. Dr. Houston also obtained x-rays of the claimant=s lumbar 

spine which were negative. He stated his diagnostic impressions as chronic 

low back pain, anemia, and depression. Dr. Houston concluded that, based 

on his examination of the claimant, she had no impairment in her ability to 

sit and that she could stand for short periods, walk short distances, lift and 

carry light loads, handle objects, and hear and speak without difficulty. 

 1

 Any appeal taken from this memorandum opinion and order and judgment shall 

be made to the Eleventh Circuit Court of Appeals. (See Doc. 19 (AAn appeal from a judgment 

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

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

court.@)) 

There is no documentary evidence that the claimant sought or received 

medical treatment for any medical condition during 2007 until she 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 2 of 20
3 

presented to the Franklin Primary Health Center in October, 2007. The 

treatment note reflects that the claimant presented to the Franklin Health 

Center in October, 2007 with a complaint of low back pain for one month, 

only partially relieved with Advil. The claimant denied any other 

symptoms. She rated her pain level at that time as a A5" on a scale of 1 to 

10. The claimant was administered an intramuscular injection for her back 

pain and given prescriptions for a non-steroidal anti-inflammatory 

medication and a muscle relaxant. The claimant returned to the Franklin 

Health Center in November, 2007 for follow-up evaluation and, in addition 

to back pain, she reported that she had blood in her stool. The treatment 

note for that visit indicates that the claimant was administered another 

intramuscular injection for her back pain and that she was referred to an 

OB/GYN and a gastroenterologist. The claimant was next seen at the health 

center in February, 2008 for low back pain and the claimant was prescribed 

over-the-counter Tylenol for her pain. At her May, 2008 visit, the claimant 

continued to complain of back pain and she also complained of abdominal 

pain. She was prescribed a medication for her back pain, and she was also 

given refills of her medications for anemia. 

. . . 

3. The claimant does not have an impairment or combination of 

impairments that meets or medically equals one of the listed 

impairments in 20 CFR Part 404, Subpart P, Appendix 1. (20 CFR 

416.925 and 416.926). 

. . .

4. After careful consideration of the entire record, the undersigned 

finds that the claimant has the residual functional capacity to perform 

work activities at the light strength or exertional level, in 

function-by-function physical terms (SSRs 83-10 and 96-8p) as defined 

in 20 CFR 416.967(c). The claimant=s specific physical capacities and 

limitations during the period of adjudication have been the ability to sit 

for a total of about 6 hours during an 8-hour workday, the ability to 

stand and/or walk for a total of about 6 hours during an 8-hour 

workday, the ability to frequently lift and/or carry 10 pounds, the 

ability to occasionally lift and/or carry up to 20 pounds, and the 

unlimited ability to push and/or pull except as shown for lift and/or 

carry. The claimant has no significant postural, manipulative, visual, 

communicative, or environmental limitations. The claimant=s mental 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 3 of 20
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residual functional capacity has entailed nonexertional moderate 

limitation in her abilities to understand, remember, and carry out 

detailed instructions, to maintain attention and concentration for 

extended periods, to interact appropriately with the general public, and 

to respond appropriately to changes in the work setting. The claimant=s 

abilities to understand, remember, and carry out very short and simple 

instructions, to sustain an ordinary routine without special supervision, 

to work in coordination with or proximity to others without being 

distracted by them, to make simple work-related decisions, to ask 

simple questions or request assistance, to accept instructions and 

respond appropriately to supervisors, to get along with coworkers or 

peers, and to maintain socially appropriate behavior are not 

significantly limited. It is noted by the undersigned that simple and 

repetitive, unskilled work tasks would not have been precluded. SSR 

85-15 provides, in pertinent part, that in the evaluation of mental 

impairments, the final consideration is whether the individual can be 

expected to perform unskilled work. Unskilled jobs deal primarily with 

objects, rather than data or people, frequently entail lesser amounts of 

judgment and more routinization, and hence are more likely to present 

accommodating work environments for an individual with severe 

mental impairments. Unskilled jobs, such as described herein, are 

recognized by regulation to exist in significant numbers throughout the 

regional and national economies (20 CFR 416.966). This total work 

capacity was not prohibited or significantly altered by continuous 

12-month periods of impairment exacerbation during the period of 

adjudication[.] 

. . . 

No credible treating or examining physician of record has opined that the 

claimant was disabled or functionally limited to any degree because of any 

physical impairment or from any resulting symptoms. Consequently, the 

Administrative Law Judge has assigned substantial evidentiary weight to 

the findings and conclusions of the State Agency psychological consultant, 

Dr. Donald E. Hinton, in Exhibit 15F and to those of the State Agency 

disability specialist in Exhibit 16F. Both Dr. Hinton=s and the disability 

specialist=s conclusions are consistent with and supported by the objective 

medical evidence contained in the record, including the findings and 

conclusions of the examining sources[,] Dr. Davis and Dr. Houston. The 

Administrative Law Judge acknowledges that, as non-examining sources, 

the State Agency medical and psychological consultants= opinions are not 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 4 of 20
5 

entitled to controlling weight, but must be considered and weighed as those 

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

issues in disability claims under the Social Security Act. The opinions of a 

non-examining, reviewing physician are entitled to be accorded weight 

when they are consistent with the medical evidence of record, as they are in 

the present case. Because there is nothing inconsistent in the medical 

records listed by the non-examining, reviewing sources in this case and the 

conclusions as to the claimant=s physical and mental impairments and 

corresponding physical and mental functional limitations, the 

Administrative Law Judge finds that those opinions are entitled to be 

accorded significant evidentiary weight. 

. . . 

 

5. The claimant is capable of performing her past relevant work as 

a housekeeper. This work does not require the performance of 

work-related activities precluded by the claimant=s residual functional 

capacity. (20 CFR 416.965).

The claimant has past relevant work experience as a housekeeper. The 

vocational expert witness, Barry Murphy, testified that the claimant=s past 

relevant work is classified as light, unskilled work. The undersigned 

Administrative Law Judge asked the vocational expert witness whether an 

individual of the claimant=s age, education, and past relevant work 

experience, who possessed the residual functional capacity for light, 

unskilled work, as previously set out above in this decision, could perform 

the claimant=s past relevant work. Mr. Murphy testified that such an 

individual as described in the Administrative Law Judge=s hypothetical 

question would be capable of performing the claimant=s past relevant work 

as a housekeeper. 

Pursuant to SSR 00-4p, the vocational expert=s testimony is deemed 

consistent with the information contained in the DOT and the 

Administrative Law Judge finds the vocational expert witness testimony 

credible and consistent with the other evidence in the record. 

In comparing the claimant=s residual functional capacity with the physical 

and mental demands of the claimant=s past relevant work, the undersigned 

finds that the claimant is able to perform it as actually and generally 

performed. Therefore, based on the reliable testimony of the impartial 

vocational expert and based upon the entire record evidence, the 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 5 of 20
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undersigned concludes that the claimant has remained capable of 

performing her past relevant work as a housekeeper, as that job is actually 

and generally performed in the national economy, during any consecutive 

12-month period of time at issue. Thus, a finding of Anot disabled@ is proper 

at Step 4 of the sequential evaluation process for the period of adjudication. 

6. The claimant has not been under a disability, as defined in the 

Social Security Act, since January 30, 2007, the date the application 

was filed. (20 CFR 416.920(f)).

(Tr. 14, 16, 19, 19-20 & 22 (emphasis in original; some internal citations omitted)) The 

Appeals Council affirmed the ALJ=s decision (Tr. 1- 3) and thus, the hearing decision 

became the final decision of the Commissioner of Social Security. 

DISCUSSION

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

unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). 

In evaluating whether the claimant has met this burden, the examiner must consider the 

following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of 

examining physicians; (3) evidence of pain; and (4) the claimant=s age, education and 

work history. Id. at 1005. Once the claimant meets this burden, it becomes the 

Commissioner=s burden to prove that the claimant is capable, given her age, education 

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

exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). 

The task for the Magistrate Judge is to determine whether the Commissioner=s 

decision to deny claimant benefits, on the basis that she could perform her past work as a 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 6 of 20
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Ahousekeeper,@ is supported by substantial evidence. Substantial evidence is defined as 

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

as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 

1420, 28 L.Ed.2d 842 (1971). AIn determining whether substantial evidence exists, we 

must view the record as a whole, taking into account evidence favorable as well as 

unfavorable to the [Commissioner=s] decision.@ Chester v. Bowen, 792 F.2d 129, 131 

(11th Cir. 1986).2

Although the claimant bears the burden of demonstrating the inability to return to 

her past relevant work, the Commissioner of Social Security has an obligation to develop 

a full and fair record. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations 

omitted). Social Security Ruling 82-61 recognizes three possible tests for determining 

whether or not a claimant retains the capacity to perform his past relevant work. They 

are as follows: 

1. Whether the claimant retains the capacity to perform a past relevant 

job based on a broad generic, occupational classification of that job, e.g., 

Adelivery job,@ Apackaging job,@ etc. 3 

 

2. Whether the claimant retains the capacity to perform the particular 

functional demands and job duties peculiar to an individual job as he or she 

 2

 This Court=s review of the Commissioner=s application of legal principles, 

however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 

3

 As recognized in the ruling, use of this test is likely to be Afallacious and 

insupportable@ because A[w]hile >delivery jobs,= >packaging jobs,= etc., may have a common 

characteristic, they often involve quite different functional demands and duties requiring varying 

abilities and job knowledge.@

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 7 of 20
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actually performed it. 

3. Whether the claimant retains the capacity to perform the functional 

demands and job duties of the job as ordinarily required by employers 

throughout the national economy.4

Under ' 404.1520(e) of the Commissioner=s regulations, a claimant will be found to be 

Anot disabled@ when it is determined that she retains the residual functional capacity to 

perform the actual functional demands and job duties of a particular past relevant job or 

the functional demands and job duties of the occupation as generally required by 

employers throughout the national economy. SSR 82-61. 

In this case, the ALJ has relied upon a combination of tests two and three above 

to determine that the claimant was capable of performing her past work as a housekeeper. 

 (Tr. 22 (AThe vocational expert witness, Barry Murphy, testified that the claimant=s past 

relevant work is classified as light, unskilled work. . . . In comparing the claimant=s 

residual functional capacity with the physical and mental demands of the claimant=s past 

relevant work, the undersigned finds that the claimant is able to perform it as actually and 

generally performed.@)) 

 4

 The Dictionary of Occupational Titles= descriptions can be relied upon to define 

the job as it is usually performed in the national economy. 

Section 404.1520(e) of the Commissioner=s regulations requires a review and 

consideration of a plaintiff=s residual functional capacity and the physical and mental 

demands of the past work before a determination can be made that the plaintiff can 

perform her past relevant work. Social Security Ruling 82-62 provides that evaluation 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 8 of 20
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under ' 404.1520(e) Arequires careful consideration of the interaction of the limiting 

effects of the person's impairment(s) and the physical and mental demands of . . . her 

PRW to determine whether the individual can still do that work.@ See also Lucas v.

Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990) (to support a conclusion that a 

claimant Ais able to return to her past work, the ALJ must consider all the duties of that 

work and evaluate her ability to perform them in spite of her impairments@). 

The RFC to meet the physical and mental demands of jobs a claimant has 

performed in the past (either the specific job a claimant performed or the 

same kind of work as it is customarily performed throughout the economy) 

is generally a sufficient basis for a finding of Anot disabled.@ 

 

. . . 

The decision as to whether the claimant retains the functional capacity to 

perform past work which has current relevance has far-reaching 

implications and must be developed and explained fully in the disability 

decision. Since this is an important and, in some instances, a controlling 

issue, every effort must be made to secure evidence that resolves the issue 

as clearly and explicitly as circumstances permit. 

 

Sufficient documentation will be obtained to support the decision. Any 

case requiring consideration of PRW will contain enough information on 

past work to permit a decision as to the individual=s ability to return to such 

past work (or to do other work). Adequate documentation of past work 

includes factual information about those work demands which have a 

bearing on the medically established limitations. Detailed information 

about strength, endurance, manipulative ability, mental demands and other 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 9 of 20
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job requirements must be obtained as appropriate. This information will be 

derived from a detailed description of the work obtained from the claimant, 

employer, or other informed source. Information concerning job titles, 

dates work was performed, rate of compensation, tools and machines used, 

knowledge required, the extent of supervision and independent judgment 

required, and a description of tasks and responsibilities will permit a 

judgment as to the skill level and the current relevance of the individual=s 

work experience. 

SSR 82-62. In finding that a claimant has the capacity to perform a past relevant job, the 

decision of the Commissioner must contain among the findings, a finding of fact as to the 

claimant=s residual functional capacity, a finding of fact as to the physical and mental 

demands of the past job/occupation, and a finding of fact that the claimant=s residual 

functional capacity would permit a return to the past job or occupation. Id.

In this case, plaintiff contends that the ALJ made the following errors: (1) he erred 

in ignoring the opinion of Patricia Noonan, a certified registered nurse practitioner; (2) he 

erred in failing to order a consultative psychological/psychiatric examination; (3) he erred 

in adopting the conclusions of a non-acceptable state agency non-medical source to 

support a light physical residual functional capacity; (4) he erred in determining she does 

not have a severe impairment of chronic back pain; and (5) he erred in finding that she 

can return to her past work as a housekeeper. Because the undersigned agrees with 

plaintiff that the ALJ erred in implicitly finding that her chronic back pain is not a severe 

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impairment and in relying upon the physical RFC completed by a disability specialist, the 

undersigned does not consider the other errors raised by Jackson. See Pendley v. Heckler, 

767 F.2d 1561, 1563 (11th Cir. 1985) (ABecause the >misuse of the expert=s testimony 

alone warrants a reversal,= we do not consider the appellant=s other claims.@). 

A. The ALJ=s Implicit Determination that Plaintiff=s Chronic Back Pain is 

a Non-severe Impairment. The Commissioner=s severity regulation requires the 

claimant to make a threshold showing that she has an impairment which 

significantly limits her physical or mental ability to perform basic work activities. 

20 C.F.R. '' 416.920(c), 416.921(a) (1998); Bowen v. Yuckert, 482 U.S. 137, 147 

n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987); Jones v. Apfel, 190 F.3d 

1224, 1228 (11th Cir. 1999) (AAt the second step, [the claimant] must prove that 

she has a severe impairment or combination of impairments.@), cert. denied, 529 

U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000). Basic work activities include 

functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, 

carrying, or handling; understanding, carrying out and remembering simple 

instructions; use of judgment, responding appropriately to supervision, 

co-workers, and usual work situations; and dealing with changes in a routine work 

setting. 20 C.F.R. ' 416.921(b). An impairment can be considered not severe 

Aonly if it is a slight abnormality which has such a minimal effect on the individual 

that it would not be expected to interfere with the individual's ability to work, 

irrespective of age, education, or work experience.@ Brady v. Heckler, 724 F.2d 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 11 of 20
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914, 920 (11th Cir. 1984); see Yuckert, supra, 482 U.S. at 153, 107 S.Ct. at 2297 

(AThe severity regulation increases the efficiency and reliability of the evaluation 

process by identifying at an early stage those claimants whose medical 

impairments are so slight that it is unlikely they would be found to be disabled 

even if their age, education and experience were taken into account.@).5

 

 5

 It is clear that in Yuckert, the Supreme Court did not impose a standard higher 

than the de minimis standard set out in Brady. See Stratton v. Bowen, 827 F.2d 1447, 1451 n.7, 

1452 n.9, 1452-1453 (11th Cir. 1987). 

Inherent in a finding of a medically not severe impairment or 

combination of impairments is the conclusion that the individual=s 

ability to engage in SGA [substantial gainful activity] is not seriously 

affected. Before this conclusion can be reached, however, an 

evaluation of the effects of the impairment(s) on the person=s ability 

to do basic work activities must be made. A determination that an 

impairment(s) is not severe requires a careful evaluation of the 

medical findings which describe the impairment(s) and the informed 

judgment about its (their) limiting effects on the individual=s physical 

and mental ability(ies) to perform basic work activities; thus, an 

assessment of the function is inherent in the medical process itself. 

SSR 85-28. The claimant's burden at step two of the sequential evaluation 

process is mild. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) 

(AStep two is a threshold inquiry. It allows only claims based on the most trivial 

impairments to be rejected.@). A claimant need only show that Aher impairment is 

not so slight and its effect is not so minimal.@ Id. 

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The record in this case contains significant evidence establishing that the claimant 

suffers from chronic back pain, an impairment which, not surprisingly, is often 

recognized as a severe impairment. Lavinskey v. Astrue, 2008 WL 895722, *1 (S.D. Ala. 

2008) (the ALJ concluded in finding number 2 that A[t]he claimant has the following 

medically determinable impairments: back pain and depression[.]@); see also Pettit v. 

Commissioner, Social Security Administration, 2008 WL 3992246, *2 (D. Idaho 2008) 

(AThe ALJ found that Petitioner has the severe impairment of chronic pain[.]@). The 

evidence of record in this case regarding Jackson=s chronic back pain includes her 

numerous visits to Franklin Primary Health Center, Inc. in 2007 and 2008 for treatment 

(including injections) of same (Tr. 328-336) and a consultative report from Dr. John T. 

Houston dated March 15, 2007 which recognized as the consultant=s primary impression 

chronic back pain (Tr. 279) and concluded by noting that he Afound no impairment in her 

ability to sit, stand for short periods, walk short distances, lift and carry light loads, 

handle objects, hear or speak.@ (Tr. 280 (emphasis supplied)). While the foregoing 

medical evidence might not establish that Jackson is disabled due to her chronic back 

pain, this evidence does provide sufficient evidence to satisfy the low or de minimis 

standard for a severe impairment. See McDaniel, supra. More to the point, the evidence 

from Dr. Houston clearly establishes that plaintiff=s chronic back pain significantly limits 

her physical ability to perform the basic work activities of walking and standing. Because 

the evidence establishes that plaintiff=s chronic back pain is a severe impairment and the 

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ALJ erred in not finding Jackson=s back pain to be a severe impairment,6 this cause must 

be reversed and remanded for further proceedings not inconsistent with this decision. 

B. ALJ=s Reliance on the Physical RFC Completed by a Disability 

Specialist. Jackson also contends that the ALJ erred in relying upon the physical 

residual functional capacity assessment completed by a disability specialist in 

determining that she can perform the exertional requirements of a full range of light work 

and, therefore, the requirements of her past work as a Ahousekeeper.@ 

 6

 A reading of the ALJ=s decision in this case nowhere reveals that he explicitly 

determined that plaintiff=s chronic back pain was not a severe impairment. In fact, nowhere does 

the ALJ cite to this Circuit=s de minimis standard and find that plaintiff=s chronic back pain does 

not meet that standard. Instead, the ALJ simply recounts the evidence, including that which 

relates to plaintiff=s chronic back pain, but only includes in his specific finding number 2 that her 

severe impairments are anemia and depression. (See Tr. 14-16) 

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Contrary to the ALJ=s assessment in the decision denying Jackson SSI benefits 

(see Tr. 19 & 19-20 (A[T]he Administrative Law Judge has assigned substantial 

evidentiary weight to the findings and conclusions of the . . . State Agency disability 

specialist in Exhibit 16F. . . . The Administrative Law Judge acknowledges that, as 

non-examining sources, the State Agency medical and psychological consultants=

opinions are not entitled to controlling weight, but must be considered and weighed of 

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

disability claims under the Social Security Act.@)), an RFC assessment completed by a 

disability specialist is entitled to no weight, compare Traylor v. Astrue, 2010 WL 920114, 

*5 (M.D. Ala. 2010) (AThe referenced opinion, however, is not that of a physician; it is 

the opinion of the DDS disability examiner, Karen Wiggins. Her opinion is not, as the 

Appeals Council apparently believed, entitled to consideration as an expert medical 

opinion.@ (internal citation omitted)); Foxx v. Astrue, 2009 WL 2899048, * 7 (S.D. Ala. 

2009) (AWhile the findings of state agency medical consultants regarding the nature and 

severity of an individual=s impairments must be considered and can be relied upon when 

they do not conflict with the opinions of examining sources, there is no evidence before 

the Court that Carol M. Davis, S.D.M., the person who completed the RFC assessment is 

a medical consultant whose opinion qualifies as a medical source opinion.@); Bolton v. 

Astrue, 2008 WL 2038513, *4 (M.D.Fla. 2008) (A>An 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, nor to consideration as evidence from other non-medical sources.=@); and Casey 

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16 

v. Astrue, 2008 WL 2509030, *4 n.3 (S.D. Ala. 2008) (A[A]n RFC assessment completed 

by a disability specialist is entitled to no weight.@) with 20 C.F.R. ' 416.913(c) (AAt the 

administrative law judge and Appeals Council levels, and at the reviewing official, 

administrative law judge, and Decision Review Board levels in claims adjudicated under 

the procedures in part 405 of this chapter, we will consider residual functional capacity 

assessments made by State agency medical and psychological consultants, medical and 

psychological experts . . ., and other program physicians and psychologists to be 

>statements about what you can still do= made by non-examining physicians and 

psychologists based on their review of the evidence in the case record.@) & (d)(1)-(4) 

(describing evidence that may be used from other acceptable medical and non-medical 

sources but never identifying disability specialists as an acceptable non-medical source); 

cf. Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990) (the opinion of a 

non-examining, reviewing physician Ais entitled to little weight and taken alone does not 

constitute substantial evidence to support an administrative decision.@). That the RFC 

assessment completed in this case by disability specialist Beverly Holt (Tr. 305-312) is 

entitled to no weight is particularly appropriate since Holt=s specific finding that Jackson 

can stand and/or walk for about 6 hours in an 8-hour workday (Tr. 306), a prerequisite for 

the full range of light work activity,7

 is inconsistent with and cannot be reconciled with 

 7 ALight 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 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 16 of 20
17 

the findings of Dr. Houston, a consultative examiner, that Jackson has no impairment 

with respect to standing Afor short periods@ and walking Ashort distances[.]@ (Compare Tr. 

306 with Tr. 280) The limitations placed by Dr. Houston on plaintiff=s physical abilities to 

walk and stand are simply not consistent with the finding that plaintiff can perform the 

substantial walking and standing required of the full range of light work, SSR 83-10, 

supra, and her past work as a Ahousekeeper@

8

 (see, e.g., Tr. 144 (plaintiff=s description of 

her janitorial work at Rite Aid from October 30, 2003 through August, 2004 as part-time 

work of 2-3 hours per day which required 2 hours of standing and walking, stooping, 

crouching and crawling)). 9

 While it would have been consistent with Dr. Houston=s 

 

considered capable of performing a full or wide range of light work, you must have the ability to 

do substantially all of these activities.@ 20 C.F.R. ' 416.967(b) (2009). Social Security Ruling 

83-10 provides that unskilled light jobs require being on one=s feet up to two-thirds of a workday 

and the full range of light work requires standing or walking, off and on, for a total of 

approximately 6 hours of an 8-hour workday. 

8

 In light of the undersigned=s analysis of Dr. Houston=s opinion and assessment of 

plaintiff=s condition, the defendant=s harmless error argument in this regard (see Doc. 17, at 9-10) 

is not persuasive. 

9

 Plaintiff=s consistent description of her janitorial work at Rite Aid as part time 

(Tr. 144), and the minimal wages she earned from October of 2003 through August of 2004 (see 

Tr. 116-117 (wages of $831.64 in 2003 and $3,997.34 in 2004)), raise a question in the 

undersigned=s mind regarding whether such work constitutes substantial gainful activity. 

Compare Martinez v. Commissioner of Social Security, 132 Fed.Appx. 310, 313 (11th Cir. 2005) 

(A>Generally, in evaluating . . . work activity for substantial gainful activity purposes, [the SSA=s] 

primary consideration will be the earnings . . . derive[d] from the work activity.= . . . Earnings 

that will ordinarily show engagement in substantial gainful activity include average monthly 

earnings of over $700 for the year 2001 and slightly more for 2002.@) and Wiles v. Astrue, 2009 

WL 465027, *4 (M.D. Fla. 2009) (APlaintiff=s testimony and his earnings record reveals that 

Plaintiff=s job as a tax clerk was not substantial gainful activity because this job was only 

performed on a part-time basis, and the amounts earned by Plaintiff were insufficient to amount 

to substantial gainful activity.@) with 20 C.F.R. '' 416.972 & 416.974. On remand, the ALJ need 

direct his attention to this issue as well. 

Case 1:09-cv-00807-C Document 21 Filed 06/21/10 Page 17 of 20
18 

opinion for the disability specialist to find that plaintiff can perform the full range of 

sedentary work activity, it is clear to the undersigned that such a scenario would never 

have taken place since such a finding would have led to Jackson being found disabled 

under the grids (compare Tr. 48, 52, 54 & 80-81 (on January 22, 2009 hearing date 

plaintiff was 53 years old, with an eighth grade education, and had performed work at the 

light unskilled level) with 20 C.F.R. Pt. 404, Subpart P, Appendix 2, Grid Rule 201.09 (an 

individual closely approaching advanced age,10 with a limited or less education, and only 

unskilled work experience is presumed disabled)). 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 Ahousekeeper@ 11 is not supported by substantial evidence. 

Accordingly, this cause must be remanded for further proceedings not inconsistent with 

this decision.12 

 10 An individual closely approaching advanced age is aged 50 through 54. 20 C.F.R. 

' 200.00(g) (2009). 

11 It is interesting that the ALJ insists on describing plaintiff=s past work at Rite Aid 

as a housekeeper as opposed to that of a janitor, as plaintiff herself described such work (see Tr. 

143-144). On remand, assuming the ALJ correctly establishes that plaintiff=s previous work at 

Rite Aid constitutes substantial gainful activity, he need establish that such work is properly 

described as work as a housekeeper, as opposed to work as a janitor, and that such description is 

consistent with the DOT. Given that plaintiff=s previous job was performed at a business 

establishment, as opposed to in a private home, it appears to the undersigned that such work 

would be better described as janitorial work. 

12 In light of the fact that Dr. Hinton=s mental RFC assessment will be stale on 

remand (see Tr. 287 (RFC dated April 9, 2007)), it is suggested that plaintiff be referred for a 

consultative psychiatric evaluation and that the examining physician complete a mental RFC 

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CONCLUSION

 

assessment and PRTF as part of his/her evaluation of plaintiff. 

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20 

 It is ORDERED that the decision of the Commissioner of Social Security 

denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 

U.S.C. ' 405(g),

13 see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 

78 (1991), for further proceedings not inconsistent with this decision. The 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, Shalala v. Schaefer, 509 U.S. 292, 

113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court=s jurisdiction over this 

matter. 

DONE and ORDERED this the 21st day of June, 2010. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

 13 Although the plaintiff=s application in this case is solely for supplemental security 

income benefits pursuant to 42 U.S.C. ' 1383(c)(3), remand is proper under sentence four of '

405(g) because 1383(c)(3) provides that A[t]he final decision of the Commissioner of Social 

Security after a hearing under paragraph (1) shall be subject to judicial review as provided in 

section 405(g) of this title to the same extent as the Commissioner=s final determination under 

section 405 of this title.@

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