IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MALCHOLM JEMAL HALE, *

*

 Plaintiff, * CIVIL ACTION NO. 13-00462-CB-B

 *

vs. *

*

CAROLYN W. COLVIN,1 *

 *

Commissioner of Social *

Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff Malcholm Jemal Hale (hereinafter “Plaintiff”), 

who is proceeding pro se, seeks judicial review of a final 

decision of the Commissioner of Social Security denying his

claim for a period of disability, disability insurance benefits,

and supplemental security income under Titles II and XVI of the 

Social Security Act, 42 U.S.C. §§ 401, et seq., and 1381, et 

seq. This action was referred to the undersigned for report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Upon 

consideration of the administrative record and memoranda of the 

 1 Carolyn W. Colvin became the Acting Commissioner of Social 

Security on February 14, 2013. Pursuant to Rule 25(d), Federal 

Rules of Civil Procedure, Carolyn W. Colvin should be 

substituted for Michael J. Astrue as the defendant in this suit. 

No further action need be taken to continue this suit by reason 

of the last sentence of section 205(g) of the Social Security 

Act, 42 U.S.C. § 405(g).

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parties, it is RECOMMENDED that the decision of the Commissioner 

be AFFIRMED.

I. Procedural History

Plaintiff protectively filed an application for a period of 

disability, disability insurance benefits, and supplemental 

security income on June 30, 2009. (Tr. 188). Plaintiff alleges

that he has been disabled since July 5, 2009, due to asthma, 

shortness of breath, coughing, and weakness. (Id. at 188, 210).

Plaintiff’s applications were denied and upon timely request, he 

was granted an administrative hearing before Administrative Law 

Judge Michael L. Levinson (hereinafter “ALJ”) on January 14, 

2011. (Id. at 141-44). On January 24, 2011, ALJ Levinson 

issued an unfavorable decision finding that Plaintiff is not 

disabled. (Id. at 144). Plaintiff appealed that decision to 

the Appeals Council, which denied review. Plaintiff then sought 

review before the United States District Court for the Northern 

District of Alabama, which remanded the case pursuant to 

sentence six because the hearing transcript was not available. 

(Id. at 3, 71). 

On remand, Administrative Law Judge (hereinafter “ALJ”) 

Roger A. Nelson conducted a second hearing on July 20, 2012, 

which Plaintiff attended, pro se. (Id. at 87). At the second 

hearing, Plaintiff was apprised of his right to have counsel, 

and he elected to proceed without counsel and provided testimony

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related to his claims. (Id. at 92, 105). A vocational expert 

(“VE”), also appeared at the hearing and provided testimony. 

(Id. at 119). On October 2, 2012, ALJ Nelson issued a second

unfavorable decision finding that Plaintiff is not disabled. 

(Id. at 81). On October 25, 2012, Plaintiff appealed that 

decision to the Appeals Council, which denied review on August 

13, 2013. (Id. at 1). 

Thus, the ALJ’s decision dated October 2, 2012 became the 

final decision of the Commissioner. Having exhausted his

administrative remedies, Plaintiff timely filed the present 

civil action. (Doc. 1). 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). 

II. Issue on Appeal

A. Whether substantial evidence supports 

the ALJ’s RFC assessment?

III. Factual Background

Plaintiff was born on May 16, 1988, and was twenty-four

years of age at the time of his second administrative hearing on 

July 20, 2012. 2 (Tr. 87, 188). Plaintiff testified that he

 2 As discussed above, following Plaintiff’s first administrative 

hearing and denial in January 2011 (id. at 1, 144), he appealed

to the United States District Court for the Northern District of 

Alabama, which remanded his case pursuant to sentence six 

because the hearing transcript was not available. (Id. at 1, 

71). Plaintiff was given a second, de novo hearing on July 20, 

2012, before ALJ Nelson. (Id. at 71, 87).

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graduated from the University of Alabama at Birmingham (“UAB) in 

2011 with a B.A. in Business Administration. 3 (Id. at 107). 

Plaintiff testified that, prior to graduation, from 2005 to 

2009, he worked as a waiter at various restaurants, but since 

graduation, he has been looking for a desk job. (Id. at 114-

16). Plaintiff testified that he applied for jobs at Regions

Bank, Wachovia Bank, and Wells Fargo but was not hired after 

telling them that he had been fired as a waiter because of his 

asthma. (Id. at 114).

Plaintiff testified that he is unable to work because of 

his asthma, which causes him to avoid most physical activities, 

including running and sports. (Id. at 112). In his Function 

Report dated August 20, 2009, Plaintiff also stated that he 

constantly coughs throughout the day and night and that his 

asthma affects his sleep. (Id. at 192-93). According to 

Plaintiff, his asthma also makes him tired and weak, which makes 

it difficult for him to drive or attend to his personal needs. 

(Id. at 193-94). 

Plaintiff stated that he lives alone, that he drives when 

necessary, that he shops online, cooks, does laundry and 

ironing, and that he is able to handle his own finances. (Id.

 3 Plaintiff took an exceptionally heavy class load (18 hours) his 

last semester so that he could graduate, stating: “I had to cram 

it in and go ahead to graduate.” (Tr. 109).

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at 194-95). Plaintiff reported that he can lift fifty pounds, 

squat for ten minutes, stand for fifteen to twenty minutes, walk 

thirty feet, and climb one staircase. (Id. at 197).

According to Plaintiff, his medications help after he takes 

them; however, they only last about three hours, and he can only 

take them twice a day. (Id. at 113, 192). Plaintiff’s 

medications include Advair, Singulair, and ProAir. (Id. at 106-

07). Plaintiff reported that he has had no side effects from 

his medications. (Id. at 214).

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. 4 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). 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. 

 4 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).

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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 

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, *4

(S.D. Ala. June 14, 1999).

B. Discussion

An individual who applies for Social Security disability 

benefits must prove his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. Disability is defined as the “inability to 

engage in 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 12

months.” 42 U.S.C. §§ 423(d)(1)(A); see also 20 C.F.R. §§ 

404.1505(a), 416.905(a). The Social Security regulations 

provide a five-step sequential evaluation process for 

determining if a claimant has proven his disability.5 20 C.F.R. 

 5 The claimant must first prove that he or she has not engaged in 

substantial gainful activity. The second step requires the 

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§§ 404.1520, 416.920. 

In the case sub judice, following remand and a de novo

hearing, the ALJ determined that Plaintiff has not engaged in 

substantial gainful activity since July 5, 2009, the alleged 

onset date, and that he has the severe impairment of chronic 

asthma. (Tr. 74). The ALJ further found that Plaintiff does not 

have an impairment or combination of impairments that meets or 

medically equals any of the listed impairments contained in 20 

C.F.R. Part 404, Subpart P, Appendix 1. (Id.).

The ALJ concluded that Plaintiff retains the residual 

 

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 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; and (4) the claimant’s age, 

education and work history. Id. 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, 836 (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)).

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functional capacity (hereinafter “RFC”) to perform sedentary and 

light level work, with the following exceptions: Plaintiff “can 

walk for twenty to thirty minutes at one time and only one and a 

half hours in a standard 8-hour workday. [Plaintiff] can stand 

for one hour at a time for a total of only three hours in an 

eight-hour day. [Plaintiff] can stand and walk in combination 

for approximately four hours in an eight-hour day. [Plaintiff] 

must avoid all significant exposure to dust, fumes, smoke, 

cleaners, and solvents. [Plaintiff] must also avoid extremes of 

heat, cold, and humidity in his work environment, i.e., opting, 

instead, for a more climate controlled work setting. 

[Plaintiff] must also avoid all climbing of ladders, ropes, and 

scaffolds. Finally, [Plaintiff] can only occasionally climb up 

stairs in the workplace.” (Id. at 75). The ALJ also determined 

that while Plaintiff’s medically determinable impairments could 

reasonably be expected to produce the alleged symptoms, his

statements concerning the intensity, persistence and limiting 

effects of the alleged symptoms were not credible to the extent 

described. (Id. at 76).

Given Plaintiff’s RFC, the ALJ found that Plaintiff is 

unable to perform any past relevant work. (Id. at 79). 

However, utilizing the testimony of a VE, the ALJ concluded that 

considering Plaintiff’s residual functional capacity for a range 

of sedentary and light work, as well as his age, education and 

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work experience, there are also other jobs existing in the 

national economy that Plaintiff is able to perform, such as 

“information clerk,” “customer service clerk,” and “telephone 

solicitor,” all of which are classified as sedentary. (Id. at 

79-80). Thus, the ALJ concluded that Plaintiff is not disabled. 

(Id. at 80-81). 

In determining that Plaintiff did not meet any Listing, the 

ALJ also made the following relevant findings: 

The claimant’s asthma does not meet the 

requirements of Listing 3.03. It requires 

asthma with chronic asthmatic bronchitis or 

asthma attacks in spite of prescribed 

treatment and requiring physician 

intervention, occurring at least once every 

2 months or at least six times a year. 

However, there is no medical evidence of 

chronic bronchitis that causes valid 

spirometry results low enough to meet the 

requirements for the claimant’s height. The 

most recent respiratory testing shows that 

the claimant had three attempts that each 

had inadequate effort (Exhibits 5F, 8F and 

14F). Likewise, there is no evidence of 

attacks with the frequency required by the 

listing (Exhibits 2F, 8F, 10F, and 15F). 

Furthermore, Victoria L. Hogan, M.D. 

confirmed that the respiratory testing in 

Exhibit 4F does not meet the requirements of 

the listing. The repeatability of testing 

as well as the presence of acute coughing 

noted on the forms both would limit the 

validity of the testing. (Exhibits 4F and 

5F). 

(Id. at 74-75). 

In addition, in assessing the Plaintiff’s RFC, the ALJ made

the following relevant findings:

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The claimant alleges that he “can’t hold a 

job with [his] asthma.” He reported 

shortness of breath, coughing, and weakness 

(Exhibit 4E). The claimant alleges that he 

becomes light headed when he starts to cough 

if he walks for long periods. He stated 

that when he runs that he feels like he is 

going to pass out (Exhibit 7E). The 

claimant alleges that tight clothing and 

bathing even makes him cough. He reported 

that he cannot play sports. He reported 

that he can only stand for fifteen or twenty 

minutes and walk for thirty feet (Exhibit 

2E). The claimant testified that he cannot 

run. . . .

In terms of the claimant’s respiratory 

impairment, the claimant’s alleged 

limitations are not fully supported by the 

evidence. The claimant testified that he is 

taking Advair, Singulair, and ProAir. He 

stated that ProAir, a rescue inhaler, is 

taken twice a day then again as needed. He 

testified that Singulair is taken once a 

day, and Advair is taken twice a day. 

Nonetheless, the claimant reported that he 

has no side effects from his medications 

(Exhibit 4E). However, he did later report 

that using Albuterol makes him sleepy 

(Exhibit 7E). He testified that the 

medications do ultimately help his asthma 

symptoms. He reported some limited overuse 

of his inhaler; however, he also confirmed 

that he has obtained yearlong prescriptions 

to avoid having to continue to pay insurance 

copayments just to obtain medications. This 

last factor of the duration without medical 

treatment is substantially inconsistent with 

the extent of the claimant’s allegations of 

uncontrollable asthma. 

The claimant testified that he obtained a 

degree recently in business administration 

from the University of Alabama at 

Birmingham. The claimant testified that he 

lived in Birmingham and attended school from 

2008 through 2011 when he graduated. The 

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claimant was taking eighteen college course 

hours per semester in his final year. He 

also took summer courses (Exhibit 20E). The 

claimant testified that he missed no more 

than approximately 3 classes a semester to 

avoid being dropped from the class. He 

testified that he lived off-campus, but 

within driving distance. The claimant 

testified that he parked on the street 

because it was closer to the elevator for 

his classes. The claimant testified that he 

did have low grades in one course; however, 

he stated that it was not due to the asthma. 

He stated that he missed a test and was not 

allowed to retake it. He continues to search 

for work at a bank. However, the claimant 

also testified that his asthma symptoms seem 

to increase when he is lying down at night. 

The claimant reported that, with the 

exception of time in school and in part-time 

work, he avoids other activities. 

Nonetheless, he reported that he can cook, 

drive, wash clothes, iron, shop online, pay 

bills, count change, handle bank accounts, 

watch television, attend school Monday 

through Friday. He admitted being able to 

lift fifty pounds, squat for ten minutes, 

stand for fifteen or twenty minutes, and 

climb a staircase (Exhibit 2E). He testified

that he parked on the street when he 

attended school to be close to the elevator. 

Nonetheless, his testimony is inconsistent 

with the report that it takes him five to 

ten minutes to rest after walking only 

thirty feet in Exhibit 2E. On the other 

hand, the claimant is given substantial 

benefit of the doubt that he does still have 

significant limitations in standing and 

walking due to his asthma. However, the 

same limitations are fully accommodated 

within the above residual functional 

capacity.

The claimant testified that he remains on 

his parents’ insurance policy. Nonetheless, 

he has obtained very limited treatment for 

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his respiratory impairments. The claimant’s

most recent treatment was in Birmingham with 

Richard C. Crittenden, M.D. However, despite 

the claimant’s reports, Dr. Crittenden’s

treatment notes show that he was only 

prescribed one puff of the ProAir inhaler as 

needed, one 10 mg Singulair per day, and one 

puff of Advair every day. He is given the 

benefit of the doubt that he may have 

increased the dosages consistent with his 

symptoms because his pharmacy records 

confirm that he was obtaining the same

dosage as prescribed, despite his reports 

that he was doubling two of the three 

medications that were taken regularly 

(Exhibit 21E).

He has been administered respiratory 

testing; however, each of his tests 

reference “non-effort” because there was 

coughing that occurred during the test or 

other issues of validity in the testing 

(Exhibits 4F, 5F, 8F, and 14F). The problem 

each time was the claimant’s repeated 

coughing. Dr. Veluz did conclude, following 

his testing, that the claimant does have 

significant obstructive disease. 

Nonetheless, the claimant reported being 

hospitalized due to asthma at Mobile 

Infirmary repeatedly near the time of the 

examination. Dr. Veluz stated that the 

claimant asserted that he could neither 

stand nor walk for any long duration of 

time. The claimant “coughs intermittently” 

and did have prolonged expirations during 

the examination. Yet, his respirations per 

minute were calculated at 22, which is 

normal. Dr. Veluz also noted no findings of 

wheezing, ronchi, or rales. Nonetheless, 

the claimant did have increased breath 

sounds. Dr. Veluz even stated that he would 

have expected, given the report of the 

claimant, that he would have an increased 

chest diameter; however, this was not the 

case (Exhibit 4F). 

The earliest medical evidence in July and 

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August 2008 do show complaints of a 

persistent, nonproductive cough. As a 

result, the claimant was prescribed inhaled 

medications. There was still no evidence of 

ongoing adjustments to medications or other 

treatment notes to suggest the duration of 

ongoing symptoms the claimant alleges 

(Exhibits 1F and 10F). 

The claimant did obtain refills in December 

2008 and February 2009. However, he was not 

in respiratory distress during those 

examinations. He also had bilateral breath 

sounds. The claimant reported sinus 

drainage and was prescribed Singulair in 

February. He also was prescribed a Ventolin 

inhaler as well as antibiotics for his acute 

sore throat and runny nose at that time 

(Exhibit 2F). 

The claimant had gone to the emergency room 

twice in 2008 for symptoms of coughing. 

However, his diagnosis each time was 

asthmatic bronchitis. There is no evidence 

that this developed into pneumonia or that 

he required hospitalization. There was only 

evidence of mild wheezing during one of the 

emergency room visits, and the proximity of 

the emergency room visits suggest that they 

may have represented the same incident of 

asthmatic bronchitis. Furthermore, the only 

chest x-ray showed the heart and lungs 

within normal limits (Exhibits 11F and 12F). 

The claimant did have two examinations at 

American Family Care Clinic. In August 

2008, the claimant did present with a cough;

however, there was no other evidence of 

treatment. During October 2011, the 

claimant had complaints of the dysuria and 

burning during urination. However, the 

testing was normal and no further treatment 

occurred. There was no evidence of any 

reported coughing or other problems during 

that examination. (Exhibit 10F). 

The only more recent treatment was obtained 

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at the Lakeshore Center. He had an acute 

upper respiratory infection in October 2009. 

He was prescribed an antibiotic and 

prescription cough syrup. There was no 

evidence of wheezing, asthma, or other 

similar complaints. However, during an 

examination in June 2010, the claimant did 

return seeking a refill of his asthma 

medication. He also did report coughing 

with very minimal exertion. Nonetheless, 

the examination report states that “while 

claiming to be short of breath and having 

difficulty breathing, his lungs are entirely 

clear.” A chest x-ray was normal. However, 

claimant’s medications were refilled; and he 

was prescribed a prednisone tapering dosage 

(Exhibits 8F and 13F). 

The examination in January 2011 involved 

only complaints of acute eye redness or 

discharge. The claimant also reported an 

acute back injury in August 2011. However, 

at this examination, he confirmed that he 

only “uses Advair almost every day” and 

“ProAir 3-4 times a week” directly 

contradicting his testimony. The treatment 

notes state that he “has no current asthma 

problems.” The claimant has normal 

respiration and normal breath sounds. There 

were no reports of the coughing that was 

noted more consistently during his other 

treatment. Still, the claimant did have 

refills of his current medications. A 

second examination in August 2011 also 

included complaints of a rash that had been 

present for approximately three days. 

Nonetheless, this examination included no 

evidence of asthma and no reports of 

symptoms. Even the respiratory examination 

showed normal findings and no distress 

(Exhibits 8F and 13F). 

The claimant returned to treatment in 

November 2011; however, this was described 

as only routine follow-up. The claimant had 

“no recent asthma episodes,” and, aside from 

the request for a note declaring his dog to 

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be a service dog for his asthma, the 

claimant merely obtained refills of his 

medications. The claimant continued to have 

normal respiration and no distress; normal 

breath sounds; and no rales, ronchi, wheezes 

or rubs (Exhibits 8F and 13F).

Therefore due to his respiratory impairment, 

the claimant can lift and carry only 

approximately twenty pounds occasionally or 

ten pounds frequently, despite his report of 

being able to lift fifty pounds. He would 

be restricted to the light exertional level. 

However, the claimant can walk for twenty to 

thirty minutes at one time and one and a 

half hours in an eight-hour day to 

accommodate his reports of weakness, 

shortness of breath, and/or coughing. He 

can stand for one hour at a time for a total 

of three hours in an eight-hour day. The 

claimant can stand and walk in combination 

for approximately four hours in an eighthour day. In order to avoid exacerbations 

of his condition, the claimant must avoid 

all exposure to dust, fumes, smoke, 

cleaners, and solvents. The claimant must 

avoid extremes of heat, cold, and humidity. 

The claimant will require a climate 

controlled work environment. The claimant 

must avoid climbing ladders, ropes, and 

scaffolds. The claimant can only 

occasionally climb stairs.

As for the opinion evidence, I give very 

limited weight to the opinion evidence in 

Exhibits 6F [from State Agency reviewer 

Robert Heilpern, M.D.]. These opinions are 

inconsistent with the medical evidence and 

offered solely by a non-examining medical 

source. While this form is virtually the 

only direct opinion evidence regarding any 

functional limitations, it is substantially 

inconsistent with the claimant’s 

allegations.

I must give some weight to the opinion in 

Exhibit 5F [of State Agency physician, 

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Victoria L. Hogan, M.D.] that the claimant’s 

impairments do not meet the requirements of 

the asthma listing. Her observations 

regarding the previous test results are 

consistent with the remainder of the 

evidence and the abnormalities obvious on 

the documents in Exhibit 4F themselves.

Some weight is also given to the opinion 

evidence in Exhibit 4F. Dr. Veluz was an 

examining source. Furthermore, he did 

conclude that the claimant has evidence of 

obstructive disease despite the 

abnormalities in the testing. However, Dr. 

Veluz did not offer any opinion regarding 

any functional limitations due to the 

claimant’s asthma. Therefore, greater 

weight is given to the conclusions in 

Exhibit 5F regarding the respiratory 

testing.

In summary, the above residual functional 

capacity assessment is supported by the 

claimant’s lack of treatment (despite having 

health insurance coverage); the documented 

effectiveness of the claimant’s long-term 

prescribed medications; the lack of regular 

emergency room treatment; the lack of 

objective medical confirmation of the 

severity and frequency of the claimant’s 

asthma attacks and/or symptoms; the limited 

nature of his asthma symptoms; his 

continuing wide range of activities of daily 

living wholly inconsistent with the 

symptomatic allegations; the lack of 

diagnostic testing or clinical observations 

to support the claimant’s symptomatic 

allegations; and the opinion of Dr. Hogan.

(Id. at 75-79) (emphasis in original). The Court now considers

the foregoing in light of the record in this case and the issue 

on appeal. 

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1. Issue

Whether substantial evidence supports 

the ALJ’s RFC assessment? 

Plaintiff, proceeding pro se, argues that the ALJ’s finding 

that he retains the RFC to perform a range of light and 

sedentary work, conditioned upon the previously stated 

restrictions (id. at 75), is not supported by substantial 

evidence.6 (Doc. 24 at 6-9). The Commissioner counters that the 

ALJ’s RFC determination is supported by substantial medical 

evidence in the record, namely Plaintiff’s medical records and 

 6 Plaintiff also argues that he was denied due process in his 

first administrative hearing because ALJ Michael Levinson “did 

not fully take the time to evaluate [his] case. . . . ” (Doc. 

24 at 4). However, the record shows that Plaintiff’s case was 

subsequently remanded by the district court, and he given a 

second, de novo hearing before ALJ Roger Nelson. (Tr. 16-17). 

Therefore, Plaintiff’s argument regarding his first 

administrative hearing is clearly without merit. His due 

process argument regarding his second administrative hearing is 

likewise without merit. Plaintiff argues that he was denied due 

process with respect to his second administrative hearing 

inasmuch as he, not ALJ Nelson, had to obtain additional medical 

records for his hearing and, further, that he had difficulty 

obtaining the transcript of his second administrative hearing 

from the Social Security office for the purpose of filing his 

administrative appeal. (Doc. 24 at 5-6). Plaintiff concedes, 

however, that the additional medical records related to his 

claims were ultimately obtained; the Appeals Council ultimately 

provided him with a copy of the complete transcript of his 

second hearing; and ALJ Nelson granted him an additional thirty 

days to update his written exceptions to the decision. (Id.). 

Therefore, Plaintiff’s arguments that he was denied due process

in this regard are also without merit. 

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the report of consultative physical examiner Rodolfo Veluz, M.D. 

(Doc. 28 at 2-6). Having reviewed the record at length, the 

Court agrees that Plaintiff’s claims are without merit.

Residual functional capacity is a measure of what Plaintiff 

can do despite his or her credible limitations. See 20 C.F.R. § 

404.1545. Determinations of a claimant’s residual functional 

capacity are reserved for the ALJ, and the assessment is to be 

based upon all the relevant evidence of a claimant’s remaining 

ability to work despite his impairments, and must be supported 

by substantial evidence. See Beech v. Apfel, 100 F. Supp. 2d 

1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546 and 

Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); 

Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 2012 WL 

997222, *4 (M.D. Ala. March 23, 2012). Once the ALJ has 

determined the Plaintiff’s residual functional capacity, the 

claimant bears the burden of demonstrating that the ALJ’s 

decision is not supported by substantial evidence. See Flynn v. 

Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985). Plaintiff has 

failed to meet his burden in this case.

As previously stated, the ALJ concluded that, although

Plaintiff has the severe impairment of chronic asthma, he is not 

disabled. (Tr. 74-80). In making this determination, the ALJ 

relied primarily upon the medical records of Plaintiff’s 

treating physicians, the report of consultative physical 

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examiner Dr. Veluz, the report of State Agency physician Dr. 

Hogan, and the Plaintiff’s testimony. (Id. at 76-79). As the 

ALJ found, this evidence confirms that Plaintiff’s chronic 

asthma, while significant, is not disabling in nature. 

First, as the ALJ found, Plaintiff was diagnosed with 

asthma as a child 7 and experienced a recurrence of symptoms in 

June 2008 in the form of a persistent, non-productive cough and 

occasional wheezing. (Id. at 261-65). Over the following 

months, Plaintiff sought treatment at American Family Care 

Medical Center and Hoover Family Medicine, where he was given 

breathing treatments and was prescribed Advair, ProAir, and 

Singulair. (Id. at 261-65, 269-71). 

As the ALJ found, from 2009 to 2011, Plaintiff sought 

limited treatment for his asthma symptoms. In October 2009, 

Plaintiff presented to MedHelp, PC with symptoms of an upper 

respiratory infection, including cough, and was treated with 

steroids and an antibiotic. (Id. at 315-16). His treatment

notes reflect “lungs clear to auscultation and percussion; 

symmetric expansion; no dyspnea.” (Id. at 315).

Plaintiff returned to MedHelp, PC the following year, in 

 7 Plaintiff was born on May 16, 1988 (Tr. 188) and was 

hospitalized in 1989 at the age of one and 1990 at the age of 

two with asthmatic bronchitis, wheezing, and a cough. (Id. at 

333-37). Despite Plaintiff’s report to Dr. Veluz of multiple 

hospital visits to Mobile Infirmary hospital in 2009 (Tr. 281), 

the hospital had no such records. (Id. at 302).

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June 2010, for refills of his asthma medications and was 

examined by C. Crittenden, M.D, who noted a history of childhood

asthma that had remitted for a number of years and had returned 

when Plaintiff was a junior in high school. (Id. at 308). 

Plaintiff reported “intractable episodes of coughing” which had 

“finally responded to prophylactic asthma medications.”8 (Id.).

A chest x-ray was “normal.” (Id.). 

The following year, in January 2011, Plaintiff presented to 

MedHelp, PC for treatment of an eye infection, with no asthma 

related complaints. Dr. John Watkins’ notes reflect “normal 

appearance and symmetric expansion of chest wall, and “normal 

respiratory rate and pattern with no distress.” (Id. at 306).

Plaintiff returned on two occasions in August 2011 for treatment 

of non-asthma related ailments and reported no asthma problems. 

(Id. at 310, 314, 346). On both occasions, his respiratory 

examination was “normal.” (Id.). In November 2011, Plaintiff 

returned to MedHelp, PC for a routine follow up of his asthma 

and refills of his medications. (Id. at 318). He was examined 

by Dr. Pink Folmar who noted “no recent asthma episodes.” 

(Id.). 

 8 As the ALJ indicated, pulmonary function tests conducted in 

September 2009 and June 2010 were inconclusive because Plaintiff 

coughed during the tests. (Tr. 286-91, 305). 

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As the ALJ found, Plaintiff’s treatment records fail to 

support his claim that his asthma prevents him from performing 

any type of work. To the contrary, none of Plaintiff’s treating 

physicians ever indicated that Plaintiff’s asthma is disabling 

in nature, and his treatment records indicate that his asthma 

was responding to medication treatment. Indeed, despite a 

history of a chronic, intermittent cough, Plaintiff’s most 

recent respiratory examinations were essentially normal. 

In addition, as the ALJ found, consultative physical 

examiner Rodolfo Veluz, M.D., found on October 19, 2009, that

Plaintiff has an “intermittent,” “bothersome and annoying 

cough,” “significant obstructive disease,” “increased breath 

sounds,” “prolonged expirations,” and “increased AP chest 

diameter which [Dr. Veluz] was expecting [Plaintiff] would 

have.” (Id. at 282). However, Dr. Veluz’s respiratory 

examination also revealed “no wheezing, no rhonchi, [and] no 

rales.” (Id.). Dr. Veluz did not indicate any functional 

limitations caused by Plaintiff’s asthma.9 (Id. at 282-91).

Moreover, Plaintiff’s activities of daily living belie his 

claim that his asthma is disabling. As the ALJ indicated, 

Plaintiff managed a heavy class load without significant 

 9 In addition, as the ALJ found, State Agency physician Dr. 

Victoria Hogan reviewed Plaintiff’s medical records and 

concluded that Plaintiff’s asthma did not meet the listing level 

of severity. (Tr. 292). 

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absenteeism during the relevant period (from 2008 through 2011), 

and succeeded in obtaining a degree in business administration 

from the University of Alabama at Birmingham. (Id. at 107-112). 

In addition, Plaintiff stated that he lives alone, that he 

drives when necessary, that he shops online, cooks, does laundry 

and ironing, that he is able to handle his own finances (id. at 

194-95), that he can lift fifty pounds, squat for ten minutes, 

stand for fifteen to twenty minutes, walk thirty feet, and climb 

a staircase (id. at 197), and that his medications help and have 

no side effects (id. at 113, 192, 214).

Having reviewed the record at length, the Court finds, as 

did the ALJ, that Plaintiff has only sporadically sought medical 

treatment for his allegedly debilitating asthma (despite having 

health insurance); his prescribed medications have been largely 

effective; none of his treating or examining physicians has 

indicated that his asthma is debilitating in nature; and 

Plaintiff’s wide range of activities of daily living are 

inconsistent with his allegations. The Court further finds that 

nothing in the record contradicts the ALJ’s RFC assessment for a 

range of light or sedentary work, as limited by the noted 

restrictions which accommodate any limitations posed by 

Plaintiff’s asthma. Therefore, Plaintiff’s claim is without 

merit.

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As a final matter, the Court notes that Plaintiff has 

submitted additional evidence for the Court’s review. The 

evidence includes medical records from USA Family Medicine dated 

March 28, 2013, which is five months after the ALJ’s decision on 

October 2, 2012. (Doc. 21 at 1). The USA Family Medicine 

records reflect that Plaintiff was treated for routine asthma 

symptoms on March 12, 2013, and they contain a single entry from 

Dr. Gerald Liu wherein he states that Plaintiff’s asthma 

“[s]ounds like [it] is uncontrolled”. (Id. at 2). Dr. Liu 

increased Plaintiff’s dosage of Advair to 500/50 mcg (one puff 

twice a day), refilled his ProAir and Singulair, and instructed 

Plaintiff to return in one year. (Id.). Plaintiff also 

submitted his prescription profile from Walgreens reflecting 

prescriptions he had filled for asthma medications from 

September 2011 to October 2013. (Id. at 3-12).

The sixth sentence of 42 U.S.C. § 405(g) permits a district 

court to remand an application for benefits to the Commissioner 

for consideration of new evidence that previously was 

unavailable. Enix v. Commissioner of Soc. Sec., 461 Fed. Appx. 

861, 863 (11th Cir. 2012) (citing 42 U.S.C. § 405(g)). “‘[A] 

sentence six remand is available when evidence not presented to 

the Commissioner at any stage of the administrative process 

requires further review.’” Id. (quoting Ingram v. Commissioner

of Soc. Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007)). “To 

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show that a sentence six remand is needed, the claimant must 

establish that: (1) there is new, noncumulative evidence; (2) 

the evidence is material, that is, relevant and probative so 

that there is a reasonable possibility that it would change the 

administrative result and (3) there is good cause for the 

failure to submit the evidence at the administrative level.” 

Id. (quoting Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.1986) 

(internal quotation marks omitted)). 

“The new evidence must relate to the period on or before 

the date of the administrative law judge’s (“ALJ”) decision.” 

Id. (citing Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 

1999) and 20 C.F.R. §§ 404.970(b), 416.1470(b), requiring 

Appeals Council to consider new evidence “only where it relates 

to the period on or before the date of the administrative law 

judge hearing decision”). “Evidence of deterioration of a 

previously-considered condition may subsequently entitle a 

claimant to benefits from a new application, but it is not 

probative of whether a person is disabled during the specific 

period under review.” Id. (citing Wilson, 179 F.3d at 1279).

“In contrast, evidence of a condition that existed prior to 

the ALJ’s hearing, but was not discovered until afterward, is 

new and non-cumulative.” Id. (citing Vega v. Commissioner of 

Soc. Sec., 265 F.3d 1214, 1218–19 (11th Cir. 2001) (concluding 

that remand was warranted based on evidence that after the 

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hearing, a doctor discovered and surgically corrected a 

herniated disk, which was material to the issue of the severity 

of claimant’s spinal problems during the relevant time period); 

Hyde v. Bowen, 823 F.2d 456, 459 & n.4 (11th Cir. 1987) 

(concluding that remand was warranted based on new evidence that

claimant’s prosthetic device was loose, which, “if accepted” 

provides “an objective medical explanation” for claimant’s 

previously unexplained complaints of pain in his hip and leg).

As stated, in the present case, the evidence proffered by 

Plaintiff consists of a single note by Dr. Liu documenting 

treatment of Plaintiff for routine asthma symptoms five months 

after the ALJ’s decision and a list of Plaintiff’s asthma 

prescriptions refilled from 2011 through 2013. (Doc. 21). 

Assuming, arguendo, that the additional evidence is not 

cumulative and that Plaintiff has good cause for not submitting 

the evidence at the administrative level, Plaintiff has not 

shown that there is a reasonable possibility that the new 

evidence (i.e., Dr. Liu’s treatment note and/or the prescription 

refill list) would change the administrative result. Indeed, 

there is nothing in this evidence to suggest a disabling medical 

condition. To the contrary, in his treatment note, Dr. Liu 

indicated that Plaintiff should return for a follow-up visit in 

one year. (Doc. 21 at 2). Because this new evidence is not 

material, a sentence six remand on the basis of new evidence is 

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unwarranted in this case.

V. Conclusion

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby RECOMMENDED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for a 

period of disability, disability insurance benefits, and 

supplemental security income be AFFIRMED.

Notice of Right to File Objections 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. L.R. 72.4. 

The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, Attorney General, State of 

Alabama, 715 F.3d 1295, 1300 (11th Cir. 2011). In order to be 

specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for 

the objection, and specify the place in the Magistrate Judge’s 

report and recommendation where the disputed determination is 

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found. An objection that merely incorporates by reference or 

refers to the briefing before the Magistrate Judge is not 

specific. 

DONE this 27th day of January, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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