IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES R. WARD, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 05-0663-M 

: 

JO ANNE B. BARNHART, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),

Plaintiff seeks judicial review of an adverse social security

ruling which denied claims for disability insurance benefits and

Supplemental Security Income (hereinafter SSI). The parties

filed written consent and this action has been referred to the

undersigned Magistrate Judge 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 (see Doc. 22). Oral argument was waived in this

action (Doc. 24). Upon consideration of the administrative

record and the memoranda of the parties, it is ORDERED that the

decision of the Commissioner be AFFIRMED and that this action be

DISMISSED.

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human SerCase 1:05-cv-00663-M Document 25 Filed 07/19/06 Page 1 of 9
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vices, 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 evidence 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).

Plaintiff was born November 24, 1964. At the time of the

most recent administrative hearing, Ward was thirty-eight years

old, had completed a sixth-grade education (Tr. 232), and had

previous work experience as a manual laborer, tree trimmer, boat

deck hand, and air conditioner worker (Tr. 234, 237). In

claiming benefits, Plaintiff alleges disability due to hepatitis

C, high blood pressure, and chronic obstructive pulmonary disease

(Tr. 235, 242).

The Plaintiff filed applications for disability benefits and

SSI on August 29, 2002 (Tr. 61-63, 214-17). Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who

determined that although he could not perform his past relevant

work, Ward was able to perform light work, naming a significant

number of jobs that were available in the national economy (Tr.

12-25). Plaintiff requested review of the hearing decision (Tr.

11) by the Appeals Council, but it was denied (Tr. 6-8).

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Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Ward alleges

that: (1) The ALJ failed to evaluate the testimony of

Plaintiff’s mother; and (2) the ALJ improperly found that Ward’s

testimony was not credible (Doc. 14). Defendant has responded

to—and denies—these claims (Doc. 17).

Plaintiff’s first claim is that the ALJ failed to evaluate

his mother’s testimony. The ALJ is required to "state

specifically the weight accorded to each item of evidence and why

he reached that decision." Cowart v. Schweiker, 662 F.2d 731,

735 (11th Cir. 1981). 

Ward’s mother, Kate Robertson, testified that her son lived

across the street from her and that she spends time with him

everyday (Tr. 254-57). She stated that, on the previous Monday,

Ward had a coughing bout and coughed up enough blood to soak two

paper towels; Robertson further stated that he coughs up blood

two or three times a week. She also stated that he has coughing

bouts where he does not cough up any blood. Robertson also

testified that Ward fatigued very easily; for example, after

vacuuming for fifteen minutes at her home, he had to stop and

rest. The witness testified that Plaintiff still smoked

occasionally and that she had not seen him drink.

The ALJ reported this testimony (Tr. 21) but did not state

what, if any, evidentiary weight he was assigning it. The Court

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finds, though, that this is, at most, harmless error as her

testimony is either contradicted or repetitive of other evidence

in the record. Specifically, Ward’s own testimony was that he

had coughed up blood, but that it was rare—only five times that

year (Tr. 248). Additionally, the record is replete with

evidence, including Plaintiff’s testimony, that he had had an

alcohol problem for years (see, e.g., Tr. 253-254). Robertson’s

testimony that Ward had cut back on his smoking and fatigued

easily was provided by Plaintiff himself, so it added no new

evidence to the record. Though the ALJ did not state what value

he placed on Robertson’s testimony, it was only harmless error.

Ward’s second claim is that the the ALJ improperly found

that his testimony was not credible. More specifically,

Plaintiff claims that his testimony was discounted “on the basis

of Plaintiff’s limited daily activities” (Doc. 14, p. 19). 

The ALJ’s findings regarding Plaintiff’s credibility, though

lengthy, is as follows: 

The undersigned did not find the

claimant’s testimony that he is unable to

work credible. The claimant has reported and

testified that he engaged in a wide range of

household chores, including mopping and

cooking and the claimant sought medical

treatment after he “hit” his left hand while

cutting meat. It appears that he also goes

to his mother’s residence and helps her with

her household chores, according to her

testimony that she asked him to vacuum her

rug. The evidence also shows that the

claimant has performed tasks as an auto

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mechanic as recently as May 2003, which led

to him injuring his hand. Therefore, the

claimant engages in a wide range of

activities, some which appear to exceed light

work requirements. The claimant testified

that he “coughs up blood” about every six

weeks and reported that he cannot work

because he cannot breath [sic], yet he

continues to smoke, which is contradictory. 

The claimant testified that he sleeps only

two hours a night and takes two fifteen

minutes naps daily and this testimony is not

credible. The claimant reported to an

examining psychologist that his sleep was

variable due to his history of working on

boats and not being able to sleep for long

while working. Yet, the claimant reported on

his daily activities questionnaire that he

has trouble sleeping due to pain in his back

and side. The claimant testified that he has

back and hip pain but has sought little

medical treatment for any pain and takes no

medications. His examinations have been

negative with full range of motion of all

joints. The claimant’s testimony that he can

walk only 162 feet before he has to rest and

his testimony that he can stand only 10 to 15

minutes is inconsistent with his activities

of mopping, cooking, and working on truck

engines. The claimant testified that sitting

causes back pain yet he described many

sedentary activities that he engages in like

watching television for two hours at a time

and reading for 45 minutes at a time. The

claimant reported that he can remember what

he has read and can remember the programs he

watches on television so his pain is not so

severe as to be distracting to any of the

activities, like working on automobile

engines or reading, even though he reported

that he “can’t afford pain medication.[”] 

The claimant leaves his home four times

weekly to go shopping and visiting with

family and friends and reported that three

times a week, he sits and visits, watches

television or plays cards with family or

friends. For these reasons, his allegations,

reports to others, and his testimony are full

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of inconsistencies and are not supported by

the medical evidence.

Tr. 21-22 (citations omitted). 

Plaintiff first objects to the ALJ’s statement that Ward

engaged in a wide range of activities (Doc. 14, p. 19; cf. Tr.

21). Specifically, the ALJ listed activities which Ward stated

that he had performed which include mopping and cooking;

Plaintiff never admitted to being able to mop (Doc. 14, p. 19).

Ward’s assertion appears to be true. Although Ward stated that

he tried to keep to keep the house clean for the woman he lived

with, he did not specifically state that he did any mopping (see

Tr. 240). 

Plaintiff also objects to the ALJ’s saying that it appears

that Ward helped his mother with household chores because he

vacuumed one of her small rugs once (Doc. 14, pp. 19-20; cf. Tr.

21). The record would seem to reflect that Plaintiff only helped

his mother once with household chores and that he got fatigued

doing that (see Tr. 256). 

Ward next objects that the ALJ indicated that Plaintiff had

performed tasks as an automobile mechanic within the considered

period of time (Doc. 14, pp. 20-21; cf. Tr. 21). The medical

evidence does demonstrate that Ward hurt his hand while working

on a truck engine (Tr. 201). 

With the exception of the mopping, the evidence of record

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demonstrates that Plaintiff has engaged in cooking, activities

consistent with keeping a house clean, vacuuming, and working on

a truck engine. The ALJ’s decision reflects that. Though this

Court cannot say whether these different things constitute a wide

range of activities or not, it is undisputed that Ward has done

them.

More to the point, though, the Court’s understanding of

Plaintiff’s argument with regard to these matters is more a

matter of degree than as to whether he actually engaged in the

activities or not. In other words, Ward reads the ALJ’s decision

as indicating that he engaged in these activities on a regular

and continual basis. For example, Plaintiff objects to the ALJ’s

statement that he “leaves his home four times weekly to go

shopping and visiting with family and friends and reported three

times a week, he sits and visits, watches television or plays

cards with family and friends” (Doc. 14, pp. 22) (quoting Tr.

22). Ward suggests that the ALJ is considering this to be seven

“out of the house” experiences weekly, while it is only really

four. 

The evidence shows that Plaintiff completed a form for the

Social Security Administration which stated that he left the home

four times weekly which included shopping and visiting with

family and friends; not half-a-page later, Ward stated that he

visits with family and friends three times a week (Tr. 117). The

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1Plaintiff also took exception to the ALJ’s stating that some of

these activities exceeded light work requirements (Doc. 14, p. 21; cf.

Tr. 22). The Court finds this concern of no moment in light of the

ALJ’s finding that Ward can perform less than a full range of light

work (Tr. 25, ¶ 12). 

8

Court understands this to mean that Ward leaves the house a total

of four times a week. The Court reads no insinuations into the

ALJ’s statements and finds that the language, though maybe not as

clearly stated as possible, reflects the evidence of record. 

While the ALJ stated that Plaintiff engaged in the various

activities set out above, the Court does not understand the ALJ

to state how often they are being performed.

Finally,1

 Plaintiff disagrees with the ALJ’s finding that

Ward’s statement that he can stand for only 10-15 minutes is

inconsistent with cooking and working on truck engines (Doc. 14,

pp. 21-22; cf. Tr. 22). Plaintiff cites case law holding that a

claimant’s participation in every day activities for short

periods of time does not preclude an award of benefits (Doc. 14,

pp. 22-25).

The Court is aware of the cited cases, but finds them

inapplicable to the facts presented here. Initially, the Court

notes that Plaintiff has not argued that the ALJ erred in finding

inconsistency in his reporting his smoking or drinking behaviors,

his lack of sleep and explanations therefor, and his statements

of limiting pain although medical evidence finds that he has full

range of motion (see Tr. 22). Furthermore, Ward does not object

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to the medical evidence which indicates that he is capable of

working (see, e.g., Tr. 184-97). And finally, Plaintiff does not

object to the testimony of the vocational expert who listed

specific jobs he could perform given the available medical

evidence (see Tr. 257-61). In short, Plaintiff’s objections to

the ALJ’s findings do not sway this Court to believe that the ALJ

has totally mischaracterized Ward’s abilities. The Court finds

that the ALJ’s determination that Plaintiff’s statements of

limitation are not credible is supported by substantial evidence.

Plaintiff has raised two claims. Both are without merit. 

Upon consideration of the entire record, the Court finds "such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion." Perales, 402 U.S. at 401. Therefore,

it is ORDERED that the Secretary's decision be AFFIRMED, see

Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and

that this action be DISMISSED. Judgment will be entered by

separate order. 

DONE this 19th day of July, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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