IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EUGENE CRAWFORD, *

 * 

Plaintiff, *

*

vs. * CIVIL ACTION 08-00714-KD-B

*

MICHAEL J. ASTRUE, *

Commissioner of * 

Social Security, *

*

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff Eugene Crawford (“Plaintiff”) brings this action

seeking judicial review of a final decision of the Commissioner of

Social Security denying his claim for disability insurance

benefits, disabled widowers 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). Oral argument was held on October 14, 2009.

Upon consideration of the administrative record, oral arguments and

memoranda of the parties, it is RECOMMENDED that the decision of

the Commissioner be AFFIRMED.

I. Procedural History

Plaintiff filed applications for disability insurance

benefits, disabled widowers benefits, and supplemental security

income on March 15, 2001. He alleged a disability onset date of

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1

There is nothing in the record which indicates that the

September 17, 2002 ALJ decision was appealed to the Appeals

Council. 

2

October 9, 2000. Following the initial denial of Plaintiff’s

application, and an administrative hearing, Administrative Law

Judge (hereinafter “ALJ”) Frank M. DeBellis issued a decision on

September 17, 2002, finding that Plaintiff was not disabled. (Tr.

264-2731. 

Plaintiff filed new applications on March 21, 2003. (Tr. 369-

371, 800-803, 805-806). In the new applications, Plaintiff alleged

that he has been disabled since September 18, 2002 due to numbness

and limpness on the left side resulting from a heart attack and

stroke, very high blood pressure, and a bad heart. (Tr. 398, 412,

421). Plaintiff’s applications were denied initially, and he

timely filed a Request for Hearing before an Administrative Law

Judge. (Tr. 277-278, 293-295, 300, 807-809). On April 28, 2005,

ALJ David Murchison (hereinafter “ALJ Murchison”) held an

administrative hearing which was attended by Plaintiff, his

representative and a vocational expert (hereinafter “VE”). (Tr.

857-869). On October 24, 2005, ALJ Murchison issued an unfavorable

decision wherein he concluded that Plaintiff was not disabled. (Tr.

279-292). On January 5, 2007, the Appeals Council (“AC”) remanded

the case with specific instructions to the ALJ. (Tr. 360-362) ALJ

Murchison conducted a second administrative hearing on April 26,

2007. Plaintiff, his representative and a VE were in attendance.

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(Tr. 83-94). On May 25, 2007, ALJ Murchison issued a second

unfavorable decision wherein he again concluded that Plaintiff was

not disabled. (Tr. 21-35). The AC denied Plaintiff’s request for

review of this decision, and the ALJ’s decision became the final

decision of the Commissioner in accordance with 20 C.F.R. §

404.981. (Tr. 12-15). 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. Issues on Appeal

A. Whether the ALJ erred in failing to adopt the prior ALJ’s

finding that Plaintiff required a sit/stand option.

B. Whether the ALJ improperly formed his own opinion about

Plaintiff’s need for a sit/stand option, and erred in finding

that Plaintiff can perform his past relevant work as an

“Instructor, Physical Education” under Dictionary of

Occupational Titles (DOT) # 099.224-010.

III. Factual Background

Plaintiff was born on April 3, 1951, and was 54 years old at

the time of the April 2005 administrative hearing. (Tr. 277, 369,

800, 865). Plaintiff has a high school education, with one year of

college. (Tr. 418, 480). Plaintiff has past work experience as

a ship fitter, security guard, custodian, and physical education

director. (Tr. 93, 448, 461-467, 497, 861-865). At the April 2005

hearing, the VE testified that Plaintiff’s past work as a custodian

is medium unskilled, his past work as an activity director is light

and semi-skilled and his work as a ship fitter is heavy and

skilled. (Tr. 862). 

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2

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).

4

Plaintiff testified at the April 2005 hearing that his worst

problems are his glands and his heart. He also testified that his

blood pressure shoots up whenever he is active, and that he

experiences pain and stiffness in his legs and arms whenever he

tries to work. (Tr. 862). At the April 2007 hearing, Plaintiff

complained of stiffness on his right side, his shoulders and his

legs, and of pain in his neck and back. According to Plaintiff,

both the stiffness and the pain have gotten worse since the last

hearing. (Tr. 86-88). Plaintiff also testified that he cannot sit

too long without changing positions, and that he tosses and turns

all night to find a comfortable position for sleep. He further

testified that he can stand for about two hours, and that after

about two or three hours, he requires a nap. (Tr. 88-89). 

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.

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).2 A court

may not decide the facts anew, reweigh the evidence, or substitute

its judgment for that of the Commissioner. Sewell v. Bowen, 792

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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. 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 (S.D. Ala.

June 14, 1999).

B. Discussion

An individual who applies for Social Security disability

benefits must prove his disability. 20 C.F.R. §§ 404.1512,

416.912. Disability is defined as the “inability to do 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 twelve months.” 42 U.S.C. §§

423(d)(1)(A), 404.1505(a), 416.905(a). The Social Security

regulations provide a five-step sequential evaluation process for

determining if a claimant has proven her disability. 20 C.F.R. §§

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The claimant must first prove that he or she has not

engaged in substantial gainful activity. The second step

requires the 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; (4) the claimant’s

age, education and work history. Id. at 1005. 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 (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)). 

6

404.1520, 416.920.3

In the case sub judice, the ALJ determined that while Plaintiff

has the severe impairments of hypertension, cervical disc disease,

lumbar disc and joint disease, aortic stenosis, left ventribular

hypertrophy and asbestosis, they do not meet or medically equal the

criteria for any of the impairments listed in 20 C.F.R. Pt. 404,

Subpt. P, App. 1, Regulations No. 4. (Tr. 394, 399). (Tr. 27, 31).

The ALJ also determined that Plaintiff retains the residual

functional capacity (“RFC”) to perform work at the light exertional

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4

While the undersigned has examined all of the medical

evidence contained in the record, including that which was

generated before Plaintiff’s alleged onset date, only that

evidence which is relevant to the issues before the Court is

included in the summary.

7

level, that is, to sit for a total of 8 hours, stand for a total of

6 hours, and walk for a total of 4 hours in an eight-hour workday.

He found that Plaintiff could lift/carry 21-30 pounds, frequently

reach, occasionally bend, squat, crawl and climb, and use his

extremities for repetitive action. He further found that Plaintiff

should avoid more than occasional exposure to dust, fumes, gases and

temperature extremes. (Tr. 31). The ALJ concluded that Plaintiff

is capable of performing his past relevant work as a physical

education instructor. (Tr. 34).

The relevant evidence of record4 reflects that Plaintiff was

treated by Cecil L. Parker, Jr., M.D., on September 3, 2002.

Plaintiff was diagnosed with valvular heart, sleep apnea, weight

loss and cervical musculoskeletal muscle spasm. (Tr. 558). 

Plaintiff presented to Singing River Hospital emergency room

on February 10, 2003, complaining of left-sided weakness and

numbness in his face and arm. (Tr. 572). A CT of his head was

normal, and a chest x-ray showed no evidence of acute pulmonary

disease. (Tr. 587-588). An MRI showed chronic microvascular

ischemic changes, but no evidence of an acute process, a bilateral

duplex carotid sonography was normal, an EEG showed generalized

slowing of cerebral rhythms, without any paroxysmal activity, and

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5

Plavix is used to reduce the risk of stroke or heart attack

in patients who have already had a heart attack or stroke, or

have other circulatory problems due to narrowing and hardening of

the arteries. See www.drugs.com. Last visited October 7, 2009. 

8

an echocardiogram showed sinus rhythm with nonspecific ST

abnormalities (Tr. 577, 585, 589, 590-591). On discharge, Plaintiff

was diagnosed with transient ischemic attack, causing left-sided

weakness, resolved; history of prior stroke with no sequelae; and

history of questionable myocardial infarction. He was prescribed

Plavix5. (Tr. 572).

Donald Ellis, D.C., of Discover Chiropractic Center, P.C.,

treated Plaintiff from June 2003 through October 2003. His

treatment notes from June 1, 2003 reflect that Plaintiff was

involved in a motor vehicle accident on that day. Throughout his

treatment, Plaintiff reported pain and stiffness in his low back and

neck. (Tr. 611-619). Dr. Ellis completed a Physical Capacities

Evaluation on August 18, 2003. He opined that Plaintiff was able

to sit/stand/walk four hours at a time and five hours total in an

eight-hour workday, could frequently lift up to ten pounds,

occasionally lift up to 25 pounds, and could use hands and feet for

repetitive action without limitations. He further stated that

Plaintiff could occasionally bend, squat, crawl, and reach, and

could not climb at all. Dr. Ellis totally restricted Plaintiff from

activities at unprotected heights and activities involving exposure

to dust, fumes and gases. Dr. Ellis opined that Plaintiff is

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 8 of 26
9

moderately restricted from activities involving exposure to marked

changes in temperature and humidity, and that he is mildly

restricted from activities involving being around moving machinery,

and involving driving automotive equipment. Dr. Ellis provided a

diagnosis of moderate to advanced degenerative joint disorder, and

opined that Plaintiff had been impaired with the disorder for four

years. (Tr. 601). 

During October 2003, Dr. Ellis noted that the injuries

Plaintiff sustained in a traffic accident exacerbated his symptoms,

and that he had responded well to treatment over the past three

months. Dr. Ellis observed that a cervical spine x-ray showed

advanced degenerative disc disease at C5/C6 and C6/C7, rotation

malposition, and decreased lordosis, that the thoracic spine x-ray

showed decreased kyphosis and rotation malposition at T4/T5, and

that the lumbar spine x-ray showed degenerative joint disease at

L5/S1, rotation malposition at L5/S1, and an acquired right short

leg. (Tr. 605-606). Dr. Ellis diagnosed Plaintiff with neck

strain/sprain, whiplash injury and thoracic and lumbar

strain/sprain. (Tr. 608). In a “Disability Certificate” dated

August 21, 2003, Dr. Ellis opined that Plaintiff was totally

incapacitated from August 21, 2003 to October 21, 2003. (Tr. 610).

Plaintiff presented to Franklin Primary Health Center, Inc.

(hereinafter “Franklin”) on December 16, 2003. He complained of

numbness on his left side and low back pain. He was diagnosed with

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arteriosclerotic heart disease, and referred to Dr. Parker. (Tr.

630-630A). 

William A. Crotwell, III., M.D., performed an orthopedic

evaluation on May 18, 2004 at the request of the Agency. On

physical examination of Plaintiff’s upper extremities, Dr. Crotwell

reported forward flexion of 80, extension 70, and lateral motion 50,

with poor attempt. He further reported +2 reflexes in the biceps,

triceps and brachioradialis, decreased sensory over both arms, 5/5

motor, and normal sweat patterns, grip strengths, and intrinsics and

thenars. (Tr. 637). On physical examination of Plaintiff’s lower

extremities, Dr. Crotwell reported that Plaintiff bent to take off

his socks, but then asked for help; normal heel/toe walk; forward

flexion of 60; and extension 40 to 50. Plaintiff had +2 reflexes

in the patella and Achilles; decreased sensory over the inner thigh

and calf of both legs; 5/5 motor; and negative hip rotation. Dr.

Crotwell noted increased pain with plantar flexion and decreased or

no change with dorsiflexion, which he stated was “inconsistent.”

(Tr. 638). 

 Plaintiff’s cervical spine x-rays showed disc space collapse

at C4-5 and C5-6 with degenerative disc disease, some osteophyte

formation, and spurring. X-rays of Plaintiff’s lumbar spine showed

minimal degenerative changes, some mild disc space collapse at L4-5,

and possible sacralization of L5. Dr. Crotwell diagnosed Plaintiff

with moderate cervical degenerative disc disease and mild lumbar

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degenerative disc disease, opined that Plaintiff’s degenerative disc

disease could be treated conservatively, and that Plaintiff could

perform light and sedentary work. (Tr. 638-639).

Dr. Crotwell completed a Physical Capacities Evaluation on May

20, 2004. He opined that Plaintiff could sit/stand/walk one hour

at a time, could sit 8 hours total, stand six hours total and walk

four hours total in an eight-hour workday. He further opined that

Plaintiff could lift 10 pounds continuously, 25 pounds frequently,

and 50 pounds occasionally, and that he could carry five pounds

continuously, 20 pounds frequently, and 25 pounds occasionally. Dr.

Crotwell also opined that Plaintiff can use his hands and feet for

repetitive action, and can bend, squat, crawl and climb

occasionally, and reach frequently. He assigned Plaintiff a total

restriction from activities at unprotected heights, a moderate

restriction from activities around moving machinery, and a mild

restriction from activities involving driving automotive equipment.

He again opined that Plaintiff could perform light manual labor and

any sedentary work. (Tr. 640). 

Plaintiff presented to Providence Hospital emergency room on

November 30, 2004, complaining of chest pain. He underwent a heart

catheterization, which showed no significant epicardial coronary

disease. (Tr. 644-647, 649, 762-764). A CT of his chest showed no

pulmonary embolic disease, no acute intrathoracic abnormality, and

normal appearance of the thoracic aorta. (Tr. 648). Plaintiff’s

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6

The medical records reflect that during Plaintiff’s

hospital stay, he was treated by both Dr. Citrin and Dr. Rihner.

(Tr. 643, 646).

7

It is not clear from the medical record whether it was Dr.

Citrin or Dr. Rihner who treated Plaintiff on December 28, 2000.

(Tr. 722). 

8

Point of maximal impulse; the point on the chest wall where

the maximum cardiac impulse is seen or palpated. See,

www.medilexicon.com. (Last visited September 9, 2009). 

12

EKG results were abnormal, showing lateral T Wave inversion

consistent with possible ischemia. (Tr. 650). At discharge,

Plaintiff’s diagnosis was chest pain, hypertension and reflux, and

he was directed to follow-up with Michael A. Rihner, M.D., of

Citrin & Rihner Cardiology, P.C., in four weeks so he could be

placed on a two gram sodium, low-fat, low-cholesterol diet. (Tr.

643, 761)6

.

Plaintiff was seen at Citrin & Rihner Cardiology, P.C. on

December 28, 2004 with complaints of burning in his chest7

. His

physical exam was normal except for heart palpitations, and his

diagnosis was chest pain and hypertension. (Tr. 722). 

Plaintiff underwent a cardiovascular evaluation by Dr. Citrin

on January 3, 2005 at the request of the Agency. (Tr. 661-662).

On physical exam, Dr. Citrin noted no bruits and no jugular venous

distension and clear lungs. His cardiovascular exam showed a

regular rate and rhythm with III/VI systolic murmur; normal

splitting second heart sounds; no gallops or rubs; and PMI8 at the

apex. Plaintiff’s abdomen was non-tender; there were no pulsatile

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 12 of 26
13

masses; pulses were 2+ bilaterally throughout; and there was no

peripheral edema. Plaintiff’s EKG showed sinus bradycardia and left

ventribular hypertrophy with a strain pattern, his coronary arteries

were normal, and his EKG showed left ventribular hypertrophy and

mild aortic stenosis. Dr. Citrin opined that Plaintiff should be

able to perform work at the “moderate” exertional level. (Tr. 661).

In a Medical Source Opinion form completed on the same day, Dr.

Citrin opined that Plaintiff has no limit on his ability to stand

and sit in an eight-hour workday, that Plaintiff can walk one to two

hours at a time and that he can walk a total of four to six hours

in an eight-hour workday. He also opined that Plaintiff can

occasionally lift/carry 30 pounds, frequently lift/carry 25 pounds,

and constantly lift/carry 20 pounds. He further opined that

Plaintiff can frequently climb, balance, stoop, kneel, crouch, and

crawl, and can constantly push/pull with his arms and legs, handle,

finger, feel, talk, hear, and reach overhead. Dr. Citrin opined

that Plaintiff can occasionally work in high, exposed places and

around automotive equipment, and that he can frequently work in

extreme cold or heat and in wetness and humidity, around fumes,

noxious odors, dust, mists, gases or poor ventilation, and in

proximity to moving mechanical parts, and to constant exposure to

vibration. (Tr. 663-665).

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Plaintiff was also treated at Providence Hospital emergency

room on September 2, 2005, and November 22, 2005. The medical

records reflect an abnormal EKG, and a chest x-ray which showed

no acute disease. (Tr. 699-702, 705, 712-713, 779). Additionally,

Plaintiff was treated at Springhill Memorial Hospital emergency

room on June 14, 2006. His physical exam was normal, including

extremities with full range of motion, equal tone and strength,

and no cyanosis, edema, joint tenderness or effusion. A chest xray was unremarkable, and an EKG showed sinus bradycardia without

any acute ST changes. (Tr. 783-789).

10Plaintiff’s urine screen was positive for cocaine, although

Plaintiff denied cocaine use. 

14

Plaintiff was admitted to Mobile Infirmary on April 4, 20059.

On admission, Plaintiff was diagnosed with chest pain, hypertension

and anxiety. (Tr. 679). Kenneth E. Francez, M.D., performed a

consultative evaluation on this day, and noted chest pain, mild

aortic insufficiency, mild to moderate tricuspid regurgitation;

hypertension; poly-substance use10; abnormal electrocardiogram Twave inversion in the lateral leads; and normal left ventricular

ejection fraction from November 2004 echocardiogram. (Tr. 671-675).

Plaintiff was scheduled to be evaluated by Cardiology Associates but

left the hospital against medical advice, with his monitors and IV

intact. (Tr. 673).

Plaintiff underwent a physical examination by Travis Rutland,

M.D., on March 4, 2006, at the request of the Agency. Plaintiff

described his activities of daily living as including cooking,

cleaning his home, blowing leaves from his yard with a leaf blower,

raking on good days, and walking a mile every two to three days for

exercise. Plaintiff’s physical examination was normal, except Dr.

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15

Rutland noted that Plaintiff ambulated slowly without the assistance

of his cane, and that he stumbled on his toes and heels. (Tr. 730-

732). Dr. Rutland diagnosed Plaintiff with chronic cervical neck

pain, likely secondary to degenerative disc disease; chronic

lumbago, likely secondary to degenerative disc disease;

hypertension; hypothyroidism; and history of coronary artery

disease. (Tr. 733).

An Agency physician completed a Physical Residual Functional

Capacity Assessment on March 21, 2006. In the assessment, Plaintiff

is limited to lifting/carrying up to 10 pounds frequently and up to

20 pounds occasionally, and standing/walking/sitting about six hours

in an eight-hour workday. In addition, the Agency physician opined

Plaintiff is unlimited in his ability to push/pull hand or feet

controls, that Plaintiff is restricted from any balancing, and that

Plaintiff is limited to occasional climbing, stooping, kneeling,

crouching, and crawling. Plaintiff was not assigned any

manipulative or visual limitations, although he was restricted from

any activities around hazards, from moderate exposure to fumes,

odors, dusts, gases and poor ventilation, and from concentrated

exposure to extreme cold, heat or vibration. (Tr. 749-756).

Plaintiff was seen by Shazib N. Khawaja, M.D., FACC, FSCAI at

the University of South Alabama on June 20, 2006. His physical exam

was normal except for 2/6 holosystolic murmur and extremities with

1+ edema bilaterally and 2+ pulses in temporal plane and distal

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 15 of 26
16

pulse. Dr. Khawaja reported that Plaintiff’s EKG was essentially

normal with no evidence of previous Q wave myocardial infarction,

and that he had no cardiac symptoms. (Tr. 791-796).

1. Whether the ALJ erred in failing to adopt the prior

ALJ’s finding that Plaintiff required a sit/stand

option?

Plaintiff points to the first ALJ’s decision, which was issued

in September 17, 2002 and found that Plaintiff’s RFC included a

sit/stand option, and asserts that the first ALJ’s finding with

respect to Plaintiff’s RFC is “binding on the Defendant” as to the

current applications. (Doc. 10 at 4). Defendant responds that the

ALJ was not required to adopt determinations made in the previous

opinions, and contends that 20 C.F.R. § 404.946(a) provides that

the issues before an ALJ are all those brought out in the initial,

reconsidered or revised determination that were not decided in

favor of Plaintiff. (Doc. 11 at 18-19). 

In the administrative decision dated September 17, 2002, ALJ

DeBellis found that “The claimant has a residual functional

capacity for work at the ‘light’ exertional level, with a sit/stand

option.” (Tr. 272). In the instant ALJ’s decision, the ALJ set

forth Plaintiff’s RFC as follows:

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity perform work at the light exertional

level, in function-by-function physical terms, as set

forth in SSRs 83-10 and 96-8p, with the presence of

certain environmental limitations. That is, the claimant

has been able to sit for a total of 8 hours, stand for a

total of 6 hours and walk for a total of 4 hours during

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an 8-hour workday; has been able to lift and carry 21-30

pounds; and has been able to frequently reach;

occasionally bend, squat, crawl and climb; and use his

extremities for repetitive action such as simple

grasping, fine manipulation and pushing/pulling of

controls. To accommodate his asbestosis, the claimant

must avoid more than occasional exposure to dust, fumes,

gases and temperature extremes. 

. . . Therefore, the medical evidence and the claimant’s

testimony do not support the need for a sit/stand option.

......

(Tr. 31, 34).

Recently, in McKinzie v. Commissioner of Social Security, 2010

U.S. App. LEXIS 1461 (llth Cir. Jan. 21, 2010) (per curiam), a

panel of the Eleventh Circuit addressed the issue of whether

administrative res judicata precluded an ALJ from rejecting a prior

ALJ’s finding that the claimant could not use her arms or hands

repetitively. The Court observed that “Administrative res judicata

applies when the agency has made a previous determination or

decision . . . about [a claimant’s] rights on the same facts and on

the same issue or issues, and this previous determination or

decision [had] become final by either administrative or judicial

action.” 20 C.F.R. § 404.957(c)(1); see Cash v. Barnhart, 327 F. 3d

1252, 1255 (llth Cir. 2003)”. McKinzie at *2-*3. The Court also

noted that it considered persuasive the Seventh Circuit’s decision

in Reynolds v. Brown, 844 F.2d 451 (7th Cir. 1988), which found that

“an ALJ should not consider prior applications when the instant

application involves a different period of time than that alleged

in prior applications. Id. at 453-454(stating that the evidence in

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18

prior applications was “completely irrelevant to the instant

application, which alleged an onset date beginning after the prior

applications were denied.)” Id. at *3. In McKinzie, the Court

concluded that because the claimant’s current application concerned

an unadjudicated time period, the ALJ did not err in declining to

give preclusive effect to a prior finding that the claimant could

not use her arms or hands repetitively. See also Luckey v. Astrue,

331 Fed. Appx. 634; 2009 U.S. App. LEXIS 10644 (llth Cir.

2009)(Court held that the doctrine of administrative res judicata

was not applicable because the factual time period for the

claimant’s current application was different from her previous

application; thus, administrative res judicata did not apply).

In the case at hand, the ALJ’s determination in the September

17, 2002 decision, that Plaintiff’s RFC includes a sit/stand

option, was not binding on the ALJ who issued the decision at

issue. The determination made in the first decision was for the

time period from October 9, 2000 through the date of that decision,

September 17, 2002, and was based on the evidence of record in that

case for that time period. (Tr. 272-273). In her current

applications, Plaintiff alleged an onset date of September 18,

2002; thus, the ALJ’s review focused on evidence from September

2002 through the date of the May 2007 decision because that was the

time period in question. Because the ALJ’s findings in the first

decision did not relate to the unadjudicated time period addressed

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 18 of 26
19

in the May 2007 decision, the prior findings were not binding on

the ALJ who rendered the May 2007 decision. 

Moreover, once the Appeals Council remanded the ALJ’s October

24, 2004 decision, the ALJ was not bound by the findings contained

in that decision. See Gibbs v. Barnhart, 130 Fed. Appx. 426, 430,

2005 WL 1052858 (llth Cir. 2005)(“Because the Appeals Council

vacated the first ALJ’s written decision with instructions for the

ALJ to obtain and consider additional evidence, the specific

findings contained in that first decision were never conclusively

established and were subject to modification.”); Houston v.

Sullivan, 895 F. 2d 1012 (5th Cir. 1989)(ALJ not bound to earlier

decision, on remand); Gregg v. Commissioner of Social Security,

2007 U.S. Dist. LEXIS 92424 (M.D. Fla. Dec. 17, 2007)(“Absent a

final decision, the doctrine of collateral estoppel does not bar

the ALJ’s reconsideration of the entire matter, on a more developed

record, following remand from the Appeals Council.”)

2. Whether the ALJ improperly formed his own opinion about

Plaintiff’s need for a sit/stand option, and erred in

finding that Plaintiff can perform his past relevant work

as an “Instructor, Physical Education” under Dictionary

of Occupational Titles (DOT) # 099.224-010.

The essence of Plaintiff’s second argument is that the ALJ

improperly formed his own opinion about whether Plaintiff requires

a sit/stand option and erred in finding that Plaintiff can return

to his past relevant work as a physical education instructor

notwithstanding his need for a sit/stand option. The Commissioner

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 19 of 26
20

argues that upon remand, the ALJ was not required to again adopt

Dr. Crotwell’s finding that Plaintiff is limited to sitting,

standing and walking one hour at a time, that it was the ALJ’s duty

to resolve conflicts in the evidence, and that the ALJ’s decision

is supported by substantial evidence. 

Generally, the opinions of examining or treating physicians

are given more weight than non-examining or non-treating physicians

unless "good cause" is shown. See § 404.1527(d)(1), (2), (5);

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

exists to discredit a physician's testimony when it is contrary to

or unsupported by the evidence of record, or it is inconsistent

with the physician's own medical records. Phillips v. Barnhart, 357

F.3d 1232, 1240-41 (11th. Cir. 2004). Accordingly, the ALJ may

reject the opinion of any physician when the evidence supports a

contrary conclusion. Sryock v. Heckler, 764 F.2d 834, 835 (11th

Cir. 1985). Where an ALJ articulates specific reasons for failing

to accord the opinion of a treating or examining physician

controlling weight and those reasons are supported by substantial

evidence, there is no reversible error. Moore v. Barnhart, 405 F.3d

1208, 1212 (11th Cir. 2005). 

As noted supra, in the May 25, 2007 administrative decision,

the ALJ found that Plaintiff’s RFC is as follows:

the claimant has been able to sit for a total

of 8 hours, stand for a total of 6 hours and

walk for a total of 4 hours during an 8-hour

workday; has been able to lift and carry 21-30

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 20 of 26
21

pounds; and has been able to frequently reach; 

occasionally bend, squat, crawl and climb;

and use his extremities for repetitive action 

such as simple grasping, fine manipulation and 

pushing/pulling of controls. To accommodate his

asbestosis, the claimant must avoid more than

occasional exposure to dust, fumes, gases and

temperature extremes. 

(Tr. 31). The ALJ also held that:

The undersigned has assigned significant and greater

weight to the opinions offered by Drs. Crotwell and

Citrin as well as the opinion offered by the State

Agency medical consultant. These opinions are

mutually corroborating in concluding that the 

claimant is capable of engaging in a wide range of

light work activity with the environmental

limitations indicated, as above. Before proceeding

further, the undersigned is cognizant of the Appeals

Council’s conclusion that Dr. Crotwell’s assessment

required a sit/stand option based on a limitation for

sitting, standing and walking for not more than 1 

hour at a time. After a careful review of Dr. 

Crotwell’s assessment, it is noted that he did not

limit the claimant to alternative periods of 

sitting and standing. Rather, he commented that the

claimant was able to engage in light manual labor.

...................................................

Moreover, the claimant testified at the April 2007 

hearing that he was able to stand for at least 2 hours 

before sitting. The undersigned also notes 

that Dr. Citrin, a treating cardiologist, reported 

that the claimant was able to walk for 4-6 hours 

during an 8-hour workday with no limit on standing or 

sitting. . . . Therefore, the medical evidence 

and the claimant’s testimony do not support the need 

for a sit/stand option.......

(Tr. 33-34).

The undersigned finds that while the ALJ assigned substantial

weight to the opinions of both Dr. Crotwell and Dr. Citrin, and

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 21 of 26
22

while he did not expressly reject Dr. Crotwell’s assessment that

Plaintiff is limited to sitting, standing and walking for not more

than one hour at a time, he did so implicitly as he did not include

this limitation in Plaintiff’s RFC, although he made specific

reference to it in his decision. The ALJ also provided specific

reasons why the one hour sit/stand/walk limitation was not

necessary. First, the ALJ noted that Dr. Crotwell’s assessment

did not expressly limit Plaintiff to alternative periods of sitting

and standing. If this were the only reason offered by the ALJ for

not adopting the one hour sit/stand/walk limitation, it would not

suffice. However, the ALJ also noted that Plaintiff’s treating

cardiologist, Dr. Citrin, opined that Plaintiff is able to walk for

four to six hours during an eight hour workday, with no limit on

either standing and sitting, and that Plaintiff testified at the

April 2007 administrative hearing that he is able to stand at least

two hours before sitting. The undersigned finds that both

constitute good reasons for rejecting the one hour sit/stand/walk

limitation imposed by Dr. Crotwell, and they are supported by

substantial evidence. Additional support for the RFC assigned

Plaintiff is Plaintiff’s own report of his daily activities,

specifically his report to Dr. Citrin on September 27, 2005, that

he was raking debris after Hurricane Katrina, and his report to Dr.

Rutland on March 4, 2006 that he cooked, cleaned his home, used a

leaf blower to blow leaves from his yard, and walked a mile every

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 22 of 26
11The DOT describes a physical education instructor as

requiring the ability to perform light work as follows:

Light Work - Exerting up to 20 pounds of force

occasionally, and/or up to 10 pounds of force

frequently, and/or a negligible amount of force

constantly (Constantly: activity or condition exists

2/3 or more of the time) to move objects. Physical

demand requirements are in excess of those for

Sedentary Work. Even though the weight lifted may be

only a negligible amount, a job should be rated Light

Work: (1) when it requires walking or standing to a

significant degree; or (2) when it requires sitting

most of the time but entails pushing and/or pulling of

arm or leg controls; and/or (3) when the job requires

working at a production rate pace entailing the

constant pushing and/or pulling of materials even

23

two to three days for exercise. In addition, based upon his review

of the medical evidence, the Agency physician did not find that

Plaintiff needed to periodically alternate between sitting and

standing (Tr. 750), nor did Plaintiff’s chiropractor. (Tr. 601).

Accordingly, substantial evidence supports the ALJ’s finding with

respect to Plaintiff’s RFC.

Plaintiff’s final argument is that the ALJ misquoted prior VE

testimony by stating that a prior VE opined that a claimant with a

RFC for light work with a sit/stand option could perform past work

as a physical education instructor. To the extent the ALJ did in

fact misstate VE testimony from a prior administrative hearing,

such error was harmless. In concluding that Plaintiff could return

to his past work as a physical education instructor, the ALJ relied

not on VE testimony, but on the DOT. (Tr. 34-35). According to the

DOT11, the job of physical education instructor is not precluded by

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 23 of 26
though the weight of those materials is negligible.

NOTE: The constant stress and strain of maintaining a

production rate pace, especially in an industrial

setting, can be and is physically demanding of a worker

even though the amount of force exerted is negligible. 

24

the RFC assigned Plaintiff by the ALJ. Thus, any misstatement by

the ALJ with respect to prior VE testimony was harmless.

V. Conclusion

For the reasons set forth, and upon careful consideration of the

administrative record, oral arguments and memoranda of the parties, it

is RECOMMENDED that the decision of the Commissioner of Social

Security, denying Plaintiff’s claim for disability insurance

benefits, disabled widowers benefits and supplemental security

income, is due to be AFFIRMED.

The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 29th day of January, 2009.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 24 of 26
12The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service of

this document, file specific written objections with the clerk of

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)©); Lewis v. Smith, 855 F.2d 736, 738

(11th Cir. 1988). 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, in part, 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 days12 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. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 25 of 26
26

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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 action 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/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00714-KD-B Document 16 Filed 01/29/10 Page 26 of 26