IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

RODNEY ALLEN COLLINS, : 

 : 

 Plaintiff, : 

 : 

vs. : CIVIL ACTION 09-0819-M 

 : 

MICHAEL J. ASTRUE, : 

Commission 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) (Docs. 1, 16). 

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. 20). Oral 

argument was waived in this action orally by counsel just prior 

to the hearing on June 21, 2010 and it was cancelled. Upon 

consideration of the administrative record and the memoranda of 

the parties, it is ORDERED that the decision of the Commissioner 

be REVERSED and that this action be REMANDED for further action 

not inconsistent with the Orders of this Court. 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 1 of 10
 This Court is not free to reweigh the evidence or 

substitute its judgment for that of the Secretary of Health and 

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

Cir. 1983), which must be supported by substantial evidence. 

Richardson v. Perales, 402 U.S. 389, 401 (1971). The 

substantial evidence test requires "that the decision under 

review be supported by evidence sufficient to just a reasoning 

mind in accepting it; it is more than a scintilla, but less than 

a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 

1984) (quoting Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 

1982)). 

 At the time of the administrative hearing, Plaintiff was 

forty-five years old, had completed special education classes 

through the tenth grade (Tr. 24), and had previous work 

experience as a furniture deliveryman, painter, production 

assembler, and tire changer (see Tr. 48). In claiming benefits, 

Plaintiff alleges disability due to bipolar disorder and 

coronary artery disease (Doc. 16 Fact Sheet). 

 The Plaintiff filed applications for disability benefits 

and SSI on February 10, 2006 (Tr. 83-90). Benefits were denied 

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

determined that Collins was capable of performing his past 

relevant work as a production assembler (Tr. 399-418). 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 2 of 10
Plaintiff requested review of the hearing decision (Tr. 68) by 

the Appeals Council, but it was denied (Tr. 1-5). 

 Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Collins 

alleges that: (1) The ALJ did not properly consider the 

opinions and conclusions of the treating physician; and (2) the 

ALJ relied on a non-examining, non-medical source in reaching a 

determination regarding Plaintiff's residual functional capacity 

(hereinafter RFC) (Doc. 16). Defendant has responded to, and 

denies, these claims (Doc. 17). The relevant1

 medical evidence 

of record follows. 

 On June 28, 2006, a State Agency Disability Specialist 

completed a residual functional capacity assessment which 

indicated that Plaintiff was able to lift up to twenty pounds 

occasionally and ten pounds frequently (Tr. 300-06). Collins 

would be capable of sitting, standing, or walking for six hours 

in an eight-hour day and use hand or foot controls on an 

unlimited basis. There would be no limitations in climbing, 

balancing, stooping, kneeling, crouching, crawling, or reaching. 

 

1

The Court notes that a good measure of the transcript 

concerns evidence which relates to psychological impairments or 

Collins's dependence on narcotics or alcohol. As these 

impairments are not the focus of Plaintiff's claims, this 

evidence will not be summarized herein. 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 3 of 10
 On January 5, 2007, Dr. Glenn A. Cochran, Plaintiff's 

treating cardiologist, wrote the following in a letter: 

 Mr. Collins is a 43 year old gentleman 

with a history of coronary artery disease, 

who underwent coronary artery bypass graft 

surgery in November, 2005. Since that time, 

he has faired not as well as we would like 

developing an ischemic cardiomyopathy with 

left ventricular ejection fraction 45%. 

This is below the accepted normal range of 

55-75%. Additionally, the symptoms that he 

describes are of Class II/III New York Heart 

Association heart failure. He has marked 

shortness of breath and dyspnea on exertion 

with normal activities. He is able to do 

the activities of daily living without much 

difficulty. 

 After seeing Mr. Collins and reviewing 

his file, I have to say if he is in a 

position that requires him to be on his feet 

for more than two to three hours throughout 

an eight hour period, I do not believe that 

he would be able to do this. He is able to 

sit if needed. 

(Tr. 324). On that same date,2 the Cardiologist completed a 

physical capacities evaluation in which he indicated that 

Plaintiff could sit for eight hours and stand/walk for zero-to-

 

2

This form would seem to be dated January 5, 2002 rather 

than 2007, but the ALJ states that it is 2007 which seems 

consistent with what the attorneys have argued (Tr. 207; cf. Tr. 

415; Doc. 16, p. 8; Doc. 17, p. 4). Further support for the 

latter date comes from the form itself which states that Collins 

has been capable of the abilities indicated since November 2005. 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 4 of 10
one hour at a time while capable of sitting for eight hours and 

standing or walking for two-to-three hours during an eight-hour 

day (Tr. 207). Dr. Cochran found Collins could lift up to ten 

pounds for eight hours a day, twenty pounds for seven hours, 

twenty-five pounds for four hours, and fifty pounds for two 

hours; Plaintiff was capable of carrying up to ten pounds for 

eight hours a day, twenty pounds for five hours, twenty-five 

pounds for three hours, and fifty pounds for one hour. Collins 

was capable of using his arms and legs for pushing and pulling 

of controls; he could bend for four hours, squat for three 

hours, and crawl, climb, or reach for two hours during an eighthour day. The Cardiologist went on to note that Plaintiff could 

work eight hours a day, forty hours a week on a sustained basis 

with these limitations without missing more than two days of 

work per month (Tr. 207). In a heart questionnaire, Dr. Cochran 

indicated that Collins had moderate limitation in performing 

work activity and that he should elevate his legs for two hours 

during the day (Tr. 208). On that same form, the Cardiologist 

declined to answer a question as to whether Plaintiff could 

maintain work activity for an eight-hour workday. 

 Collins testified at the administrative hearing that 

because of heart damage, he could not walk a lot and could not 

lift (Tr. 32). He could lift twenty pounds, but it tired him 

out easily (id.); Collins thought he could work if he did not 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 5 of 10
have to lift more than twenty pounds (Tr. 42). Lifting his arms 

above his head caused him to tire easily; he could walk for 

twenty minutes (Tr. 33). During the day, Plaintiff cleaned 

house, sometimes cooked and did laundry; he does not cut the 

grass on his three-quarters acre lot because he cannot push the 

mower (Tr. 37). Plaintiff elevates his legs in a recliner for 

about six hours every day (Tr. 46). 

 A Vocational Expert (hereinafter VE) testified that one of 

Collins's previous jobs was as a production assembler, which was 

light, unskilled work which required no reading or following 

written instructions (Tr. 48-49). The VE also stated, when 

questioned by the ALJ, that if Plaintiff was able to function at 

a light level and perform simple, routine, repetitive tasks, he 

would be able to perform his past work as a production assembler 

(Tr. 49). Upon questioning by Collins's attorney, the VE stated 

that the limitations found by Dr. Cochran would limit Plaintiff 

to sedentary work, eliminating the production assembler position 

(Tr. 50). 

 In his determination, the ALJ found that Collins was 

capable of performing unskilled, light work3

 (Tr. 408). He 

 

3

"Light work involves lifting no more than 20 pounds at a 

time with frequent lifting or carrying of objects weighing up to 

10 pounds. Even though the weight lifted may be very little, a 

(Continued) 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 6 of 10
particularly found that Plaintiff could occasionally lift and 

carry twenty pounds and frequently lift/carry ten pounds and 

could sit and stand or walk for six hours per day. The ALJ 

found that Plaintiff's "statements concerning the intensity, 

persistence and limiting effects" of his impairments were not 

credible (Tr. 410).4

 The ALJ also found Dr. Cochran's opinion to 

be internally inconsistent (Tr. 416). More specifically, the 

ALJ stated as follows: 

 

 Dr. Cochran found that during an eight-hour 

day the claimant has the ability to use his 

arms and hands for repetitive actions such 

as simple grasping, pushing and pulling of 

arm controls, and fine manipulation. The 

undersigned finds that this is inconsistent 

with Dr. Cochran's two hour restriction on 

reaching. Dr. Cochran further found that 

the claimant is able to carry 6 to 10 pounds 

 

job is in this category when it requires a good deal of walking 

or standing, or when it involves sitting most of the time with 

some pushing and pulling of arm or leg controls. To be 

considered capable of performing a full or wide range of light 

work, you must have the ability to do substantially all of these 

activities. If someone can do light work, we determine that he 

or she can also do sedentary work, unless there are additional 

limiting factors such as loss of fine dexterity or inability to 

sit for long periods of time." 20 C.F.R. ' 404.1567(b) (2009).

4

Plaintiff has not challenged this finding. 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 7 of 10
for eight hours. Therefore, it would be 

reasonable to presume that the claimant 

could walk during that period of time. This 

is further inconsistent with the claimant's 

ability to only stand/walk for two to three 

hours in an eight hour day. Dr. Cochran 

further found that the claimant is able to 

lift 21 to 25 pounds for four hours and 25 

to 50 pounds for two hours, which is 

sufficient for a full range of light work. 

Furthermore, Dr. Cochran indicated that the 

claimant has the ability to carry for up to 

five hours in an eight-hour day. Therefore, 

it would be reasonable assumed [sic] that he 

is able to stand/walk for those five hours. 

These inconsistencies are further supported 

by vocational expert testimony. 

Furthermore, the undersigned finds it 

significant that Dr. Cochran indicated that 

he had no opinion on whether the claimant 

could maintain work activity for an eighthour workday. For these reasons, the 

undersigned finds Dr. Cochran's opinion to 

be less than fully credible, assigns little 

weight, and, otherwise, find it not to be 

persuasive. 

(Tr. 416) (emphasis in original). The ALJ found that the 

opinion of the State Agency Disability Specialist supported his 

own finding that Collins was capable of performing light work 

(Tr. 417). 

 Plaintiff has raised two claims in bringing this action. 

Those claims, paraphrased, are that the ALJ, in reaching a 

determination regarding Plaintiff's RFC, improperly discounted 

the opinions and conclusions of Cardiologist Dr. Cochran, the 

treating physician, while relying on the opinion of a nonmedical, non-examining source. 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 8 of 10
It should be noted that "although the opinion of an 

examining physician is generally entitled to more weight than 

the opinion of a non-examining physician, the ALJ is free to 

reject the opinion of any physician when the evidence supports a 

contrary conclusion." Oldham v. Schweiker, 660 F.2d 1078, 1084 

(5th Cir. 1981);5 see also 20 C.F.R. ' 404.1527 (2009). The 

Court notes, though, that while the ALJ is responsible for 

determining a claimant=s RFC, see 20 C.F.R. ' 404.1546 (2009), 

the Eleventh Circuit Court of Appeals has held that the opinion 

of a non-examining physician Ais entitled to little weight and 

taken alone does not constitute substantial evidence to support 

an administrative decision.@ Swindle v. Sullivan, 914 F.2d 222, 

226 n.3 (11th Cir. 1990) (citing Broughton v. Heckler, 776 F.2d 

960, 962 (11th Cir. 1985)). 

 The Court finds no support for Collins's claim that the ALJ 

improperly discounted Dr. Cochran's opinions as the ALJ has 

shown internal inconsistencies in the Cardiologist's 

conclusions. However, there were only two sources of evidence 

in the record which concerned Collins's physical abilities. The 

 

 5

The Eleventh Circuit, in the en banc decision Bonner 

v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), 

adopted as precedent decisions of the former Fifth Circuit 

rendered prior to October 1, 1981. 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 9 of 10
elimination of the Cardiologist's conclusions left the ALJ with 

an RFC which has only support from a non-examining, non-medical 

source. This "alone does not constitute substantial evidence to 

support an administrative decision.@ Swindle, 914 F.2d at 226 

n.3. 

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

the Commissioner's decision is not supported by substantial evidence. Therefore, it is ORDERED that the action be REVERSED and 

REMANDED to the Social Security Administration for further 

administrative proceedings consistent with this opinion, to 

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

of evidence regarding Plaintiff's ability to work. For further 

procedures not inconsistent with this Order, see Shalala v. 

Schaefer, 509 U.S. 292 (1993). 

DONE this 22nd day of June, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

Case 1:09-cv-00819-M Document 21 Filed 06/22/10 Page 10 of 10