IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ARTHUR LEE MACK, :

Plaintiff, :

vs. CA 04-0813-BH-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

REPORT AND RECOMMENDATION

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 his claim for supplemental security income benefits. This action has

been referred to the Magistrate Judge for report and recommendation pursuant

to 28 U.S.C. § 636(b)(1)(B). Upon consideration of the administrative record,

plaintiff's proposed report and recommendation, the Commissioner's proposed

report and recommendation, and the parties’ arguments at the August 8, 2005

hearing before the undersigned, it is determined that the Commissioner's

decision denying benefits should be affirmed. 

Plaintiff alleges disability due to being HIV positive with peripheral

neuropathy, Hepatitis B and C, residuals from a fractured leg, and depression.

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

2. The claimant is HIV positive with peripheral neuropathy

and he may have hepatitis B and C. He has residuals from a

fractured left leg and depression. His impairments are considered

“severe” based on the requirements in the Regulations 20 CFR §

416.920(b).

3. These medically determinable impairments do not meet or

medically equal one of the listed impairments in Appendix 1,

Subpart P, Regulation[s] No. 4.

4. The undersigned finds the claimant’s allegations regarding

his limitations are not totally credible for the reasons set forth in

the body of the decision.

5. The undersigned has carefully considered all of the

medical opinions in the record regarding the severity of the

claimant’s impairments (20 CFR § 416.927).

6. The claimant has the following residual functional

capacity: stand and/or walk two to three hours at one time for

approximately six hours in an eight hour workday. The claimant

can sit for four to five hours at one time for a total of eight hours

in an eight hour workday. The claimant can lift up to 40 to 50

pounds occasionally, 20 to 30 pounds frequently, and five to 10

pounds constantly. The claimant can carry [] up to 20 to 30

pounds occasionally, 10 to 20 pounds frequently, and five to 10

pounds constantly. The claimant should never carry more than 30

pounds. The claimant can occasionally climb and occasionally

crouch. The claimant can occasionally work in high, exposed

places. Otherwise, the claimant has no significant physical work

related limitations. The claimant is mildly impaired in the

following areas: ability to relate to others, respond appropriately

to supervisors and peers, and respond to work pressures.

Otherwise, he has an average ability to function independently and

understand and carry out instructions. The vocational expert was

asked to assume mild to moderate mental work related

limitations due to depression; that is, simple, repetitive, routine

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work.

7. The claimant is unable to perform any of his past relevant

work (20 CFR § 416.965). 

8. The claimant is a “younger individual between the ages of

18 and 44" (20 CFR § 416.963).

9. The claimant has a “high school (or high school

equivalent) education” (20 CFR § 416.964).

10. The claimant has no transferable skills from any past

relevant work and/or transferability of skills is not an issue in this

case (20 CFR § 416.968).

11. The claimant has the residual functional capacity to

perform a significant range of medium work (20 CFR § 416.967).

12. Although the claimant’s exertional limitations do not

allow him to perform the full range of medium work, using

Medical-Vocational Rule 203.29 as a framework for decisionmaking, there are a significant number of jobs in the national

economy that he could perform. Examples of such jobs include

work as hand packager (DOT 920587018), construction flagger

(DOT 372667022) and an assembler (DOT 706684022) and

there are more than 200,000 of the above jobs in the regional

economy and more than 10 million jobs at the medium level of

exertion that the claimant could perform that would fall within his

residual functional capacity with approximately one million of

these jobs existing in the regional economy. The undersigned

finds that there are a significant number of other jobs that the

claimant could perform. 

13. The claimant could make an adjustment [to] work that

existed in significant numbers in the national economy;

accordingly, the claimant was not under a “disability,”as defined

in the Social Security Act, at any time through the date of this

decision (20 CFR § 416.920(f)).

 

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(Tr. 31-33) The Appeals Council affirmed the ALJ's decision (Tr. 5-7) 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 he is unable to perform his 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, as here, it becomes the Commissioner's burden

to prove that the claimant is capable, given his 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 he can

perform those medium jobs identified by the vocational expert and is not

disabled under the framework of the grids, 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.

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Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

"In 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).

In this case, plaintiff’s sole claim is that the ALJ erred in failing to assign

controlling weight to the opinions of his treating physicians, Drs. Keith Ramsey

and W. K. Green, pursuant to Social Security Ruling 96-2p and 20 C.F.R. §

416.927(d). (See Doc. 7) 

In the Eleventh Circuit “the testimony of a treating physician must be

given substantial or considerable weight unless ‘good cause’ is shown to the

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

The ALJ must clearly articulate the reasons for giving less weight

to the opinion of the treating physician, and the failure to do so

is reversible error. We have found “good cause” to exist where

the doctor’s opinion was not bolstered by the evidence, or where

the evidence supported a contrary finding. We have also found

good cause where the doctors’ opinions were conclusory or

inconsistent with their own medical records.

Id. (internal citations omitted).

The ALJ evaluated the opinions of Drs. Ramsey and Green in the

following manner:

Dr. W. K. Green, a physician at the Mobile County Health

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Department, reported on January 31, 2003, that the claimant is a

patient followed for HIV infection and noted that the claimant had

been followed at the clinic since April 22, 2002. Dr. Green noted

that the claimant was presently not receiving antiviral medications

due to possible side effects, noting that his last T-cell count was

1254 (normal range) and his last viral load was 1400. Dr. Green

reported that “overall his prognosis is good.” However, Dr. Green

marked a box, No. 31, other neurological manifestations of HIV

infection (e.g. peripheral neuropathy) with significant and

persistent disorganization of motor function in two extremities.

Dr. Green wrote on January 29, 2003, “patient has chronic modsevere pain secondary to previous surgical repair of left leg

fracture. Currently has exposed hardware for surgical repair.”

(Exhibit 12-F) Dr. Keith Ramsey, a physician at the Mobile

County Health Department, wrote a letter on the claimant’s behalf

dated May 9, 2002, which stated as follows: “I am currently

treating him for several medical conditions including HIV-1,

hepatitis C, and fatigue. Mr. Mack is disabled due to these

medical problems and they prevent him from holding a job.”

(Exhibit 4-F)

The undersigned finds that the reports of the doctors from the

Mobile County Health Department are inconsistent with the

reports of every other doctor in the record. Dr. Green, on one

hand, reported that the claimant was essentially doing great and

has a good prognosis but then reported that he was doing poorly.

Dr. Green’s report is inconsistent in and of itself and the

undersigned gives little weight to Dr. Green’s opinion. Dr.

Ramsey’s opinion that the claimant is unable to hold a job due to

HIV, hepatitis and fatigue is inconsistent with medical records

which show (1) HIV is stable and (2) lack of treatment of

hepatitis, which makes the diagnosis questionable. The opinions

of Dr. Green and Dr. Ramsey appear to differ dramatically from

the other medical opinions in the record.

. . .

The undersigned notes that the medical doctors are essentially in

agreement that the claimant can still perform some work related

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activities, except for his doctors at the Mobile County Health

Department. However, the [ALJ] notes that even Dr. Green at the

health department admitted that the claimant’s T-cell count is in

the normal range and that his prognosis is good. The weight of the

medical evidence shows that the claimant, while unable to

perform heavy physical labor, still has the capacity to perform

work activity. The undersigned cannot overlook the consistency

of multiple doctor’s findings regarding the claimant’s abilities to

perform both physical and mental work related activities.

(Tr. 28 & 29) 

The Magistrate Judge recommends that the Court find that the ALJ’s

decision establishes good cause for giving less weight to the opinions of Drs.

Green and Ramsey. The undersigned agrees with the ALJ that these two doctors’

opinions are bolstered neither by their own clinical findings and records or by

the other medical evidence contained in the record. In fact, as found by the ALJ,

the evidence of record supports a conclusion contrary to that suggested by Drs.

Ramsey and Green; that is, the medical evidence of record establishes that

plaintiff is not disabled and is capable of performing work which exists in

significant numbers in the national economy. (Compare Tr. 324-326, 328-361

& 364-367 with Tr. 59-63 (vocational expert’s testimony))

The undersigned disagrees with the plaintiff that the ALJ failed to specify

the weight he was assigning to the opinions of Drs. Green and Ramsey (see Doc.

7, at 9), inasmuch as the ALJ specifically stated he was according little weight

to Dr. Green’s opinion. Moreover, based upon his analysis of Dr. Ramsey’s

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In other words, substantial evidence in this record, including Dr. Green’s own

observations that plaintiff’s T-cell count was within normal range and his prognosis was good, supports

the ALJ’s determination that plaintiff is not disabled and is capable of performing those jobs identified

by the vocational expert during the administrative hearing.

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opinion, it is clear to the Court that the ALJ accorded little weight to that

opinion as well. While plaintiff also argues that the ALJ erred in failing to

discuss each of the factors listed in 20 C.F.R. § 416.927(d) prior to assigning

weight to the opinions of Drs. Ramsey and Green (see Doc. 7, at 9), the

undersigned recommends that the Court find any error in this regard entirely

harmless inasmuch as there is substantial evidence in the record which supports

the ALJ’s conclusion that plaintiff is capable of performing work which exists

in substantial numbers in the national economy. (See Tr. 324-326, 328-361 &

364-367)1 Accordingly, this Court should find no reversible error regarding the

manner in which the ALJ analyzed the opinions of plaintiff’s treating physicians,

Drs. Ramsey and Green. Because plaintiff asserts no other assignment of

record, the Commissioner’s decision denying plaintiff benefits should be

affirmed.

CONCLUSION

The Magistrate Judge recommends that the Commissioner's decision

denying plaintiff supplemental security income benefits be affirmed. 

The attached sheet contains information regarding objections to the

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report and recommendation of the Magistrate Judge. 

DONE this the 12th day of August, 2005.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within ten days of the date of service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). The procedure for challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28

U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and

original records in this case are adequate for purposes of review. Any party planning to

object to this recommendation, but unable to pay the fee for a transcript, is advised that a

judicial determination that transcription is necessary is required before the United States will

pay the cost of the transcript.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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