IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARILYN W. WEAVER, :

Plaintiff, :

vs. CA 05-0656-BH-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

REPORT AND RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. §405(g), seeking

judicial review of a final decision of the Commissioner of Social Security

denying her claim for disability insurance benefits. This action has been

referred to the Magistrate Judge for entry of a 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 May

31, 2006 hearing before the Magistrate Judge, it is determined that the decision

to deny benefits should be affirmed.

Plaintiff alleges disability due to degenerative disc disease of the Lspine with possible radiculopathy and osteoarthritis of the right hip. The

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 1 of 13
2

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

3. The claimant’s degenerative disc disease of the lumbar

spine with possible radiculopathy and osteoarthritis of the right

hip are considered “severe” based on the requirements in the

Regulations 20 CFR § 404.1520(c). The claimant and her

attorney denied any severe mental impairment at the hearing.

4. These medically determinable impairments do not meet

or medically equal one of the listed impairments in Appendix 1,

Subpart P, Regulation No. 4.

5. The undersigned finds the claimant’s allegations

regarding her limitations are not totally credible as treating

doctors and [an] examining specialist found her capable of more

than she alleged. Further, the claimant has sought little and very

conservative medical treatment despite alleging severe and

chronic pain.

6. The claimant has the following residual functional

capacity: sit one hour at a time for a total of eight hours per

eight hour workday, stand one hour at a time for a total of six

hours per eight hour workday, and walk one hour at a time for

a total of four hours per eight hour workday, lift and carry

occasionally up to 25 pounds and frequently between six to

twenty pounds, frequently reach, and occasionally [b]end, squat,

crawl, and climb.

7. The claimant’s past relevant work as child attendant did

not require the performance of work-related activities precluded

by her residual functional capacity (20 CFR § 404.1565).

8. The claimant’s medically determinable degenerative disc

disease of the lumbar spine with possible radiculopathy and

osteoarthritis of the right hip do not prevent the claimant from

performing her past relevant work.

9. The claimant was not under a “disability” as defined in

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 2 of 13
3

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

decision (20 CFR § 404.1520(f)). 

(Tr. 30-31) The Appeals Council affirmed the ALJ’s decision (Tr. 4-6) 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 Court is to determine whether the Commissioner's

decision to deny claimant benefits, on the basis that she can perform her past

relevant work as a childcare attendant, is supported by substantial evidence.

Substantial evidence is defined as more than a scintilla and means such

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 3 of 13
1 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).

2 As recognized in the ruling, use of this test is likely to be “fallacious and

insupportable” because “[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.”

4

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). "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).1

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 her 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., "delivery job," "packaging job," etc.2

 

 

 2. Whether the claimant retains the capacity

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 4 of 13
3 The Dictionary of Occupational Titles' descriptions can be relied upon to define

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

5

to perform the particular functional demands and

job duties peculiar to an individual job as he or

she 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.3

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

found to be "not 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 test three above to determine that

the claimant can perform her past relevant work as a childcare attendant. (See

Tr. 29 & 30 (“The evidence in this case establishes that the claimant has past

relevant work as a daycare worker, cashier, stock person, and janitor/cleaner.

The impartial vocational expert testified that based upon the claimant’s

residual functional capacity, the claimant could return to her past relevant

work as child attendant. The expert witness testified that the standing and

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 5 of 13
6

walking limitations precluded the performance of her other prior jobs. The

claimant reported that she worked as a child attendant from February 1997

until January 1998; thus, this work is considered relevant. . . . The undersigned

finds that the claimant can perform her past relevant work as a childcare

attendant and was therefore, not under a disability as defined in the Social

Security Act.”)) 

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 under § 404.1520(e) "requires 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 "is 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

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 6 of 13
7

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 "not 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 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

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 7 of 13
4 Plaintiff makes the related argument that the ALJ erred in failing to pose a

comprehensive hypothetical question to the vocational expert (“VE”) inasmuch as the question

failed to contain reference to the ALJ’s own finding that plaintiff has a severe impairment of

osteoarthritis of the right hip. Because the undersigned finds that Dr. Fontana’s RFC opinion

8

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.

Plaintiff contends that the ALJ made the following errors: (1) he

improperly assigned controlling weight to the opinion of the consultative

orthopedist, Dr. Andre Fontana, in violation of 20 C.F.R. § 404.1519, because

Fontana’s report was not consistent with available medical information and

was inconsistent with the consultant’s own treatment notes when he was the

treating physician; and (2) he failed to pose a comprehensive hypothetical to

the vocational expert (“VE”) in that he failed to include in the question

plaintiff’s severe impairment of osteoarthritis of the right hip.

Plaintiff’s primary argument is that the ALJ erred in assigning

controlling weight to Dr. Andre Fontana’s consultative examination in

violation of 20 C.F.R. § 404.1519 because that particular report was

inconsistent with available medical evidence establishing osteoarthritis of the

right hip and inconsistent with the consultant’s own treatment notes when he

was plaintiff’s treating physician.4

 The undersigned does not agree with

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 8 of 13
regarding plaintiff supported by the record, the ALJ’s failure to notify the VE of plaintiff’s

osteoarthritis of the right hip was harmless error. In other words, it was not necessary for the

ALJ to apprise the VE of the osteoarthritis of the right hip since that impairment did not entail

any physical limitations not contemplated in Dr. Fontana’s RFC assessment.

9

plaintiff’s argument and, moreover, finds substantial support in the record for

the ALJ’s reliance upon Dr. Fontana’s RFC assessment in posing his

hypothetical question to the VE and ultimately determining that plaintiff can

perform her past relevant work as a childcare attendant.

The medical evidence of record in this case establishes a clear history

of degenerative disc disease of the lumbar spine and osteoarthritis of the right

hip. (See, e.g., Tr. 148, 163, 168 & 178) In fact, Dr. Andre Fontana treated

plaintiff conservatively for both impairments for some period of time

beginning in 2003. (Id. at 148; see also Tr. 249 (plaintiff’s testimony that she

began her treatment with Dr. Fontana in 2003)) Indeed, all the evidence of

record in this case establishes conservative treatment of both conditions by

either Dr. Fontana or his partner, Dr. Michael Granberry. (See id. at 163, 213-

216, 235 & 237-238; Tr. 254 (plaintiff’s testimony that Dr. Granberry told her

that he could treat her with pain medication and physical therapy and that if

her pain “stays bad enough, that they can go in with a shot[]”))

On MRI scan of the lumbar spine on April 29, 2003, a history of low

back pain with pain and numbness extending into the right hip and leg was

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 9 of 13
10

noted. (Tr. 178) Plaintiff specifically testified at the hearing that she

experiences low back pain that radiates into her right hip and leg and offered

the opinions of one of her treating orthopedists and her chiropractor for why

she experiences pain. (See Tr. 249 (“I was going back and forth to a

chiropractor and getting my back and hip aligned. She said that my . . . hip .

. . kept slipping out of place, and it was making the . . . nerve in the lumbar

part of my back being pinched[] and that was causing the severe pain to go

down my leg.”); Tr. 250 & 251 (“[Dr. Granberry] told me that, in the lower

part of my back, the lumbar section, he said there is a bulging disk due to

arthritis that’s in my back, and that’s pressing up against the sciatic nerve or

the main nerve in my back. . . . [The pain] bothers me in my back, going up my

back, the low part of my back, all across my right hip, and it goes down my

leg, up under my foot and then my toes even go numb.”)) When Weaver was

examined consultatively by her former treating physician, Dr. Fontana, on

August 9, 2004, the following notation was made: “She has been seen by Dr.

Granberry and myself in 2003, diagnosed with arthritis of the hip, degenerative

disc disease. Currently she is treated by Dr. Granberry, treated for low back

pain, pain down the right leg, numbness and tingling in the right leg, no

bladder or bowel problems, painful range of motion with activity.” (Tr. 209)

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 10 of 13
11

This recitation of plaintiff’s treatment history is correct and, moreover, is

consistent with plaintiff’s testimony regarding the pain she is experiencing.

Accordingly, when Dr. Fontana concluded his examination recitation with the

sole diagnosis of degenerative disc disease of the lumbar spine with possible

radiculopathy (Tr. 210), his failure to specifically mention her right hip

impairment was insignificant because he clearly recognized that impairment

in his report and was simply focusing on the impairment that was the root

cause of plaintiff’s pain and limitations, that is, her lumbar impairment which

causes pain in her back that radiates into her right hip and leg. Moreover, given

the relatively severe physical limitations set forth by Dr. Fontana in the

physical capacities evaluation (“PCE”) (Tr. 211), it is clear to the undersigned

that Dr. Fontana took into consideration that plaintiff experiences back pain

which radiates into her right hip and leg inasmuch as the non-examining,

reviewing physician in this case indicates, upon consideration of plaintiff’s

low back and hip impairments, that Weaver can perform appreciably more

standing and walking at one time than does Fontana (compare Tr. 199 with Tr.

211 & 260). Plaintiff has come forward with no evidence which would begin

to suggest, much less establish, that the manner in which Dr. Fontana

completed the PCE would have been any different had he included in his

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 11 of 13
12

“impression” section the acknowledged right hip impairment. As aforesaid, the

evidence, in fact, establishes the contrary.

In light of the foregoing, the undersigned recommends that the Court

find that the ALJ in this case did not err in assigning controlling weight to Dr.

Andre Fontana’s consultative opinion and, moreover, did not pose an improper

hypothetical to the vocational expert. Given the VE’s testimony that plaintiff

is capable of performing her past relevant job as a childcare attendant based

on the PCE completed by Dr. Fontana (Tr. 259-260), the Commissioner’s

fourth-step denial of benefits should be affirmed.

CONCLUSION

The Magistrate Judge recommends that the decision of the

Commissioner of Social Security denying plaintiff benefits be affirmed.

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 6th day of June, 2006.

s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 12 of 13
13

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

Case 1:05-cv-00656-BH-C Document 13 Filed 06/07/06 Page 13 of 13