IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KAREN L. RIVERS, :

Plaintiff, :

vs. : CA 14-0251-C

CAROLYN W. COLVIN, :

Acting Commissioner 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 denying a claim for disability insurance 

benefits (Docs. 1, 10). The parties have consented to the exercise of jurisdiction by the 

Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 

14 & 15 (“In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the 

parties in this case consent to have a United States magistrate judge conduct any and all 

proceedings in this case, . . . order the entry of a final judgment, and conduct all postjudgment proceedings.”).) Upon consideration of the administrative record, plaintiff’s 

brief, the Commissioner’s brief and having the benefit of oral arguments, it is 

determined that the Commissioner’s decision denying benefits should be affirmed and 

this action dismissed.1

 1 Any appeal taken from this memorandum opinion and order and judgment shall be made to the 

Eleventh Circuit Court of Appeals. (See Docs. 19 & 20 (“An appeal from a judgment entered by a 

magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the 

same manner as an appeal from any other judgment of this district court.”))

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 1 of 26
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Plaintiff applied for a period of disability and disability insurance benefits on 

November 4, 2001 (Tr. 62), alleging a disability onset date of June 30, 2008 (Tr. 113-17). 

At the administrative hearing, Plaintiff was fifty-three years old (Tr. 46), had completed 

a GED (Tr. 47), and had a previous work as a telemarketer, cashier, and cafeteria 

attendant (Tr. 58). Plaintiff claimed disability due to coronary artery disease, bladder 

cancer, neck, back, and leg pain, and restless leg syndrome (Tr. 132). The 

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

1. The claimant meets the insured status requirements of the Social 

Security Act through December 31, 2013.

2. The claimant has not engaged in substantial gainful activity since June 

30, 2008, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: major depressive 

disorder, degenerative disc disease of the lumbar spine, status post 

bladder cancer, migraine headaches, coronary artery disease, and 

restless leg syndrome (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the 

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 

404.1520(d), 404.1525 and 404.1526).

...

In activities of daily living, the claimant has mild restriction. At the 

consultative examination, the claimant indicated that she is able to feed, 

bathe, groom, and dress herself without assistance. She could also use a 

telephone, manage money, prepare meals, shop for groceries, and drive an 

automobile all without assistance. Her hygiene was good and her 

appearance was neat. The claimant also indicated that she watched 

television, cooked, and did dishes (10F).

In social functioning, the claimant has mild difficulties. The claimant 

indicated that she went to the grocery store and to church. She stated that 

she liked to visit a friend in her free time (10F). She lives with her 

husband and two children.

With regard to concentration, persistence or pace, the claimant has 

moderate difficulties. At the consultative examination, the claimant was 

alert and oriented to person, place, time, day, date, and purpose for the 

evaluation. She was able to focus and sustain attention, with no 

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 2 of 26
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significant distraction from extraneous stimuli. She completed the serial 

3’s task without error and accurately spelled WORLD backwards. She 

performed basic mathematical evaluations accurately (10F). The claimant 

indicated that she enjoyed watching television, which suggests at least 

some degree of concentration/attention.

As for episodes of decompensation, the claimant has experienced no 

episodes of decompensation, which have been of extended duration.

Because the claimant’s mental impairment does not cause as least two 

“marked” limitations or one “marked” limitation and “repeated” episodes 

of decompensation, each of extended duration, the “paragraph B” criteria 

are not satisfied.

The undersigned has also considered whether the “paragraph C” criteria 

are satisfied. In this case, the evidence fails to establish the presence of the 

“paragraph C” criteria that satisfies medical listing 12.04, Affective 

Disorders. Medical evidence of record does not indicate that the claimant 

has a medically documented history of a chronic affective disorder of at 

least two years’ duration that has caused more than a minimal limitation 

of ability to do basic work with repeated episodes of decompensation. 

The claimant is not adversely affected by minimal change and does not 

require a highly supportive living arrangement.

The limitations identified in the “paragraph B” criteria are not a residual 

functional capacity assessment but are used to rate the severity of mental 

impairments at steps 2 and 3 of the sequential evaluation process. The 

mental residual functional capacity assessment used at steps 4 and 5 of the 

sequential evaluation process requires a more detailed assessment by 

itemizing various functions contained in the the broad categories found in 

paragraph B of the adult mental disorders listings in 12.00 of the Listings 

of Impairments (SSR 96-8p). Therefore, the following residual functional 

capacity assessment reflects the degree of limitation the undersigned has 

found in the “paragraph B” mental function analysis.

5. After careful consideration of the entire record, the undersigned finds 

that the claimant has the residual functional capacity to perform light 

work as defined in 20 CFR 404.1567(b) except the claimant can lift and 

carry no more [than] 20 pounds occasionally and ten pounds frequently. 

The claimant is not capable of overhead reaching or climbing ladders, 

ropes, or scaffolds. She cannot work around unprotected heights or 

dangerous equipment. She can occasionally operate foot controls, climb 

stairs and ramps, stoop, kneel, crouch, and crawl. The claimant would 

need to alternate between sitting and standing positions every 30 

minutes but would not need to leave the workstation. The claimant 

cannot make judgments on anything except simple work-related 

decisions. Changes to the work setting or routine must be minimal. 

She must avoid work tasks involving a variety o[f] instructions or tasks 

but is able to understand and carry out simple one-to-two-step 

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instructions. The claimant is able to understand and carry out detailed 

but uninvolved oral or written instructions involving few concrete 

variables from standardized situations.

In making this finding, the undersigned has considered all symptoms and 

the extent to which these symptoms can reasonably be accepted as 

consistent with the objective medical evidence and other evidence, based 

on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The 

undersigned has also considered opinion evidence in accordance with the 

requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5, 96-6p and 06-3p.

...

At the hearing, the claimant stated that she lives in a mobile home with 

her husband and two children ages 13 and 15. She has a GED and can 

read and write. The claimant indicated that she last worked in 2008 as an 

assistant manager at a Hardees restaurant. She stated that she could not 

physically do the work and could not concentrate on mental aspects of the 

work. For example, when making a hamburger, she could not remember 

what ingredients to use. She worked at Dollar General in 2007 but stated

that she could no longer do the job of a cashier. She also worked as a 

cafeteria attendant for about three to four months. She stated that she has 

not looked for work since 2008. The claimant noted that she does have 

health insurance.

When asked about her impairments, the claimant stated that she has 

ongoing issues related to her back and neck. She has pain in her hips that 

radiates upward. She takes hydrocodone, Soma, and something for 

headaches. She indicated that hydrocodone makes her very sleepy. The 

claimant stated that she saw a surgeon from 2003-2006 but does not have 

those records. This physician referred her to pain management.

The claimant stated that she was diagnosed with bladder cancer in July of 

2010, and her bladder was removed. She stated that she has been cancer 

free for about a year. She noted that she has heart disease, and a 

cardiologist monitors her condition.

As for her mental health, the claimant stated that she had a psychiatrist 

about 12 years ago when she noticed that she could not focus. She stated 

that she was also very irritable. Treatment helped somewhat. She started 

treatment again in January 2012.

In terms of activities of daily living, the claimant stated that she cannot do 

chores as quickly as she once could. She washes her children’s school 

clothes. She does not vacuum or dust. She noted that this makes her feel 

useless because her husband must do her chores in addition to his own. 

She walks around indoors and tries to concentrate on what needs to be 

done. She watches some television but does not do crafts or garden. She 

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 4 of 26
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cooks for her children but stares out the window most of the day. She 

attends church each week.

The claimant estimated that she could walk about 10 minutes at a time. 

She can stand 15 minutes at a time and can sit 20-25 minutes at [a] time. 

The claimant indicated that the external bag that holds urine also affects 

her daily activities. She stated that she must be careful when lifting or the 

bag will break. She noted that sweating or sleeping also cause difficulties 

with the bag.

After careful consideration of the evidence, the undersigned finds that the 

claimant’s medically determinable impairments could reasonably be 

expected to cause the alleged symptoms; however, the claimant’s 

statements concerning the intensity, persistence and limiting effects of 

these symptoms are not entirely credible for the reasons explained in this 

decision.

After complaints of back pain and leg numbness, a November 2003 MRI 

indicated very mild bulging disc of L4-5. There was also very mild []s

ligamentous hyperthrophy of L3-4 but there was no spinal or foraminal 

stenosis (1F).

A September 2008 MRI of the lumbar spine showed mild degenerative 

disc disease of the lubar spine and a mild annular bulge with small left 

foraminal protrusion at L2-3 creating mild to moderate narrowing of the 

left exiting foramina and mild narrowing of the right exiting foramina. 

The[re] was also a mild annular bulge of the L3-4 disc with mild 

narrowing to the origin of each exiting foramina. A mild broad based 

annular bulge with small central protrusion at L5-S1 was also observed. 

Disc material flattened the thecal sac anteriorly creating borderline 

narrowing to the origin of each exiting foramina (2F, 17). Thomas R. 

Dempsey, M.D., noted that the MRI showed only degenerative changes 

and no herniated discs; therefore, she was not a surgical candidate. 

Additionally, the claimant noted that Lortab and Soma were helping with 

pain (2F).

Hematuria was noted in July 2010, and the claimant underwent 

cystoscopy, bilateral retrograde pyelogram, and a bladder biopsy (4F). 

High-grade transitional cell carcinoma in situ was noted. Bacillus 

Calmette-Guerin (BCG) treatment was started soon afterwards. Notes 

from August 11, 2010, indicate that the claimant had a lot of pain, 

frequency, and urgency after her second BCG treatment. Notes from 

August 18, 2010 indicate that the claimant’s urine culture was negative, 

but she still had voiding complaints. Impressions included carcinoma in 

situ on BCG and acute cystitis. By September 30, 2010, the claimant had 

completed her six-week course of BCG. She did well. Weight loss was 

noted but it was not likely related to her bladder issues (8F).

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 5 of 26
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A cystoscopy, bladder biopsies, and extensive fulguration of the bladder 

tumor were performed on October 6, 2010, and pathologic findings 

included transitional cell carcinoma (4F). A three-week maintenance 

round of BCG was started in December 2010. She had irritative voiding 

symptoms suggestive of persistent cancer or possibly BCG effect (8F).

On February 7, 2011, the claimant again underwent cystoscopy, bladder 

biopsy, and fulguration of the biopsy sites. Pathologic findings indicated 

active chronic cystitis and transitional cell dysplasia (4F).

The claimant was admitted to Providence Hospital on March 13, 2011, and 

underwent radical cystectomy and ileal conduit formation. She recovered 

uneventfully and was transferred to the intensive care unit where she had 

a good recovery. She did have some postoperative pain that lasted for 

five to six days. After she was weaned [] from intravenous antibiotics, an 

oral medication[] controlled her pain as well. On discharge on March 19, 

2011, the claimant was able to tolerate a normal diet and ambulate without 

assistance. Her ostomy bag was functioning properly with clear drainage, 

and she had a good output. She still had her ureteral stents in place, and 

she was to follow up in two weeks. Her pathology returned showing that 

she had transitional cell carcinoma in situ of the bladder with no evidence 

of malignancy in the surgical margins, lymph nodes, or ureters (5F).

...

The claimant went to Springhill Center on August 24, 2011, with a chief 

complaint of chronic lumbar and abdominal pain. The claimant indicated 

that she had recovered from surgical excision of the bladder secondary to 

cancer, and her pain was stable on her current medication. She also 

indicated that her activity level had increased. She denied neurologic 

changes. The claimant rated her pain a 5/10 in severity. Diagnoses 

included bladder cancer, sacrolitis, lumbar degenerative disc disease, 

cervical pain, and spasm. Her treatment plan included Zanaflex and 

Lortab (7F).

Notes from October 7, 2011, about six months after the claimant’s radical 

cystectomy and ileal loop, reflected that she was doing well. She had no 

weight loss, bone pain, or gross hematuria. Physical examination revealed 

a healthy woman. A renal ultrasound showed normal kidneys bilaterally 

(8F, 1).

In a January 18, 2012, check-up, the claimant indicated that she was doing 

well and was not having any real problems with her conduit. There was 

no bone pain or weight loss. A CT scan of the abdomen and pelvis 

showed some small renal cysts bilaterally, but otherwise, there were no 

abnormalities. The claimant reported that she was easily fatigued and 

tired most of the time. Because her CT showed no concerns, she was told 

that she could return in six months for follow-up (15F).

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 6 of 26
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Notes from January 23, 2012, indicated that [t]he claimant had 

hypertension and hyperlipidemia. She was only taking Metarprolol at 

that time. The claimant also indicated that she was having mood swings 

that were not controlled by the Effexor she had been prescribed (14F).

Springhill Center notes from February 13, 2012, indicated a chief 

complaint of chronic lumbar and cervical pain. She continued to do well 

after bladder excision secondary to cancer. The claimant stated that her 

pain level was stable. She denied complications from medications. The 

claimant reported that her pain was a 3/10 in severity. Cardiac pulses 

were normal and of regular rate and rhythm. Cervical range of motion 

was decreased but stable. Lumbar range of motion was decreased but 

stable. There was mild posterior cervical tenderness diffusely without 

trigger points. There was moderate tenderness over both sacroiliac joints. 

There was mild facet tenderness from L3 to sacrum. Upper and lower 

extremity range of motion was unchanged and appropriate. Treatment 

plan included continuation of Lortab and Zanaflex. She was also taking 

Topirmate, Soma, Oxybutin, Metaprolol, potassium chloride, Effexor ER, 

Quinapril, Omeprazole and HCTZ (13F).

Notes from March 5, 2012 indicated that the claimant reported swelling of 

the legs and feet. She had been prescribed Abilify, and she noted that she 

was doing much better on medication (14F).

On March 27, 2012, the claimant went to Mobile Heart Specialists 

complaining of increasing dyspnea on minimal exertion. She had been 

place[d] on an inhaler but was not on statin due to an elevated liver 

function test. She was not having angina. She did have some orthpstatic 

presyncope, and her blood pressure was 136/90. An EKG showed 

bradycardia but was otherwise normal (17F, 2). Notes from May 8, 2012, 

indicated that the claimant’s stress test and echocardiogram looked okay. 

Impressions included known coronary disease with a low-risk stress test, 

carotid stenosis without stroke, controlled hypertension, and 

dyslipidemia. She was given nitroglycerin to use as needed (17F, 1).

During that period, the claimant also returned for a back pain treatment 

on May 7, 2012. She complained of low back pain with numbness and 

tingling. Diagnosis included chronic low back pain with radiculopathy. 

A May 31, 2012, x-ray showed normal alignment of the spine. There was 

no fracture or destructive bony lesion. Disc space narrowing with 

minimal anterior spurring was present at L2-3 and L4-5 (19F).

On August 30, 2012, the claimant complained of bilateral leg pain and 

lower back pain. Michael Ederer, D.O., noted that x-rays showed some 

worsening from the previous study. She underwent a left hip steroid 

injection on October 26, 2012 and November 13, 2012 (19F).

A November 5, 2012 CT scan of the abdomen and pelvis showed no 

metastatic disease with the abdomen or pelvis. There was [] no significant 

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 7 of 26
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change from January study (18F, 4). A chest x-ray showed that the 

claimant’s heart size was within normal limits. Degenerative spurring 

was seen in the lumbar spine (18F, 2).

The claimant underwent a cervical spine MRI on January 7, 2013, 

impressions included mild degenerative changes of the cervical spine with 

no canal or neural foraminal stenosis (20F, 11).

On January 21, 2013, the claimant went to Mobile Diagnostic Center to 

discuss her conditions. Examination revealed that the claimant’s active 

problems to be arteriosclerotic cardiovascular disease (ACD), benign 

hypertension, hyperlipidemia, depression, and vitamin D deficiency (21F).

Turning to the claimant’s mental health, in a consultative mental 

examination report dated January 5, 2012, the claimant reported that she 

had bladder cancer effectively treated by surgery; however, she noted that 

the ostomy bag interfered with work because it could leak at any time. 

She also reported a 17-year history of problems with heart disease, a 

seven-year history of problems with back pain (attributed to deteriorating 

disc disease), and a nine-year history of problems with apparent 

depression (marked by periods of irritable and sad mood). The claimant 

denied having symptoms of any other medical or psychiatric problem that 

might interfere with work. Kenneth R. Starkey, Psy.D., indicated that the 

claimant’s speech was generally clear and coherent and of appropriate 

rate and volume. Her thinking was rational and there was no evidence of 

significant deficits for reasoning or judgment. There was no evidence of 

delusional thought processes or paranoia. There was no loosening of 

associations, flight of ideas, or ideation or tendencies. Intellectual 

functioning was estimated to be in the Low Average range. The 

claimant’s attention and immediate memory appeared generally intact. In 

regard to recent memory functions, she reported the day’s activities 

without difficulty and the prior day’s activities also without difficulty. As 

for remote memory, she reported employment dates and school dates 

with only mild difficulty. Her fund of knowledge appeared generally 

adequate. There was no evidence of auditory or visual hallucinations. 

Her mood was generally euthymic and her affect was congruent with this 

mood. Her insight and judgment appeared adequate. Dr. Starkey’s 

diagnostic impressions included depressive disorder in partial remission. 

He reported that the [] claimant’s Global Assessment of Functioning 

(GAF) was 67. According to the Diagnostic and Statistical Manual of 

Mental Disorders, 4th Edition, a GAF of between 61 and 7 represents some 

mild symptoms or some difficulty in social, occupational, or school 

functioning. Dr. Starkey opined that the claimant’s ability to understand, 

remember, and carry out simple/concrete instructions appeared adequate 

(from a psychological perspective). Her ability to work independently 

also appeared adequate. Her ability to work with supervisors, coworkers 

and public appeared adequate, as did her ability to manage common work 

pressures (10F).

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 8 of 26
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In a psychiatric review technique dated January 6, 2012, M. Hope Jackson, 

Ph.D., opined that the claimant had mild restrictions in activities of daily 

living, maintaining social functioning, and maintaining concentration, 

persistence, or pace. She noted no episodes of decompensation of 

extended duration (11F).

Records reflect that John I. Bailey, Jr., M.D., first examined the claimant on 

January 16, 2013. She complained of feeling worthless. He noted that the 

claimant had good attention a[nd] was able to establish rapport. She had 

a blunt affect and was tearful at times. Her thoughts were logical and 

memory seemed intact. A bipolar screen was positive. Assessment 

included bipolar depression and adjustment reaction with anxiety and 

depression. Abilify was continued. Dr. Bailey met with the claimant 

again on February 20, 2013, and she complained of being sluggish and 

sleepy. Her Effexor was increased a lithium augmentation or increase in 

Ability was recommended (22F).

In a note dated March 6, 2013, Dr. Bailey opined that the claimant’s 

chronic psychiatric burdens were unusually severe and extensive, and to 

that point, they had not responded to medication well at all. He stated

that she had a predisposition to severe depression and had more than one 

kind of depression. He indicated that the claimant knew there was no 

possibility of improvement in any of her serious medical problems (disc 

disease, heart disease, gastric bypass, absence of bladder, and ostomy). 

He opined that any emotional improvement would be slow. He also 

opined that the claimant could not achieve any gainful or practical 

employment (22F).

In a residual functional capacity questionnaire dated March 6, 2013, Dr. 

Bailey opined that the claimant had marked limitations in activities of 

daily living and in maintaining concentration, persistence, or pace. She 

had extreme limitations in social functioning. He also noted marked 

limitations in her ability to understand, remember, and carry out 

instructions, respond appropriately to co-worker, and perform repetitive 

tasks in a work setting (24F).

After a thorough examination of the evidence, the undersigned finds the 

claimant’s testimony less than fully credible. For example, the objective 

evidence regarding the claimant’s back, hip, and neck problems is 

minimal. There are objective findings that would establish a condition 

that would cause some pain; however, the level of pain the claimant 

alleges is not credible. Disc bulging and degenerative changes were 

repeatedly referred to as “mild” (1F and 2F), and no foraminal or neural 

stenosis was noted (13F). The claimant also reported improvement with 

Lortab and Soma (2F). Although the claimant had minimal treatment for 

her musculoskeletal complaints, she alleged that the pain [] has kept her 

from working. Nevertheless, the claimant has been able to care for her 

family by doing the laundry and cooking quick meals. Her pain does not 

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 9 of 26
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seem to prevent her from watching television, and she is able to attend 

church.

While the claimant’s bladder cancer required aggressive medical 

management, it did not appear to preclude[] all work for a full 12 months. 

The undersigned notes that the claimant must wear an ostomy bag, and 

because of that, she should not do strenuous work as accounted for in the 

residual functional capacity. Notes show that the claimant’s pain was 

under control (5F), and she was not having problems with her conduit 

(15F).

As for her other impairments, a recent echocardiogram and EKG were 

normal (17F), and the claimant’s reports of headache or restless leg 

symptoms were infrequent at most.

The claimant’s biggest problem appeared to be her depression; she 

testified that she spends a portion of her day staring out a window. Dr. 

Bailey’s statements that the claimant was essentially non-functional seem 

to be out of proportion with what has [been] her lifelong level of 

functioning and even her current testimony. Dr. Bailey indicated that the 

claimant had extreme social functioning deficits, yet she testified that she 

goes to church each week. Further, other medical records fail to establish 

this level of depression. Although the condition was listed in other 

doctors’ reports along with anxiety, the claimant also reported that she 

was doing much better on Abilify (14F). Additionally, Dr. Bailey has a 

rather short treatment history with the claimant. He first examined the 

claimant in January 2013. While he indicated marked daily living 

difficulties and marked concentration difficulties, such deficits are not 

evidenced from treatment notes. In fact, although the claimant had had 

some treatment for depression in the way of medication, none of her other 

doctors in the past five years referred her to a mental health specialist or 

mentioned that she was in a non-functioning state due to her mental 

health. In fact, Dr. Jackson actually indicated that the claimant did not 

have a severe mental impairment at all (11F). Thus, little weight is 

accorded to [] Dr. Bailey’s opinion.

Although non-examining, Dr. Jackson’s opinion deserves some weight, 

particularly in a case like this in which there exist a number of other 

reasons to reach similar conclusions as discussed above.

6. The claimant is capable of performing past relevant work as cashier II. 

This work does not require the performance of work-related activities 

precluded by the claimant’s residual functional capacity (20 CFR 

404.1565).

At the beginning, the vocational expert testified that given the above 

residual functional capacity, the claimant would be capable [of 

performing] her past relevant work as cashier II, DOT# 211.462-010. It is 

performed at the light exertional level and has a specific vocational 

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 10 of 26
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preparation of 2. The vocational expert indicated that the claimant could 

perform the job as it is actually performed.

In comparing the claimant’s residual functional capacity with the physical 

and mental demands of this work, the undersigned finds that the claimant 

is able to perform it as actually performed.

...

7. The claimant has not been under a disability, as defined in the Social 

Security Act, from June 30, 2008, through the date of this decision (20 

CFR 404.1520(f)).

(Tr. 26, 28 & 29-36 (emphasis in original)). The Appeals Council affirmed the ALJ’s 

decision (Tr. 1-4) 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. An ALJ, in turn, uses a five-step sequential evaluation to 

determine whether the claimant is disabled, which considers: (1) whether the claimant 

is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe 

impairment; (3) if so, whether the severe impairment meets or equals an impairment in 

the Listing of Impairments in the regulations; (4) if not, whether the claimant has the 

RFC to perform h[is] past relevant work; and (5) if not, whether, in light of the 

claimant’s RFC, age, education and work experience, there are other jobs the claimant 

can perform. Watkins v. Commissioner of Soc. Sec., 457 Fed. App’x 868, 870 (11th Cir. Feb. 

Case 1:14-cv-00251-C Document 17 Filed 09/10/15 Page 11 of 26
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9, 2012)2 (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); 

Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).

If a plaintiff proves that she cannot do her past relevant work, it then becomes 

the Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—

given her age, education, and work history—of engaging in another kind of substantial 

gainful employment that exists in the national economy. Id.; Jones v. Apfel, 190 F.3d 

1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 

(2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Finally, but importantly, 

although “a claimant bears the burden of demonstrating an inability to return to his 

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).

The task for the Magistrate Judge 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 cahier II, 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. 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). 3 Courts are precluded, however, from “deciding the facts anew or reweighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 

 2 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive 

authority.” 11th Cir.R. 36-2.

3 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).

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2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, 

“’[e]ven if the evidence preponderates against the Commissioner’s findings, [a court] 

must affirm if the decision reached is supported by substantial evidence.’” Id. (quoting 

Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).

On appeal to this Court, Rivers asserts three reasons why the Commissioner’s 

decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1) 

the ALJ erred as a matter of law by failing to properly assess the opinions of treating 

physician, John I. Bailey, M.D.; (2) the ALJ’s mental and physical residual functional 

capacity determination is not supported by substantial evidence; and (3) the ALJ failed 

to properly assess the credibility of the claimant. The Court will address each issue in 

turn.

A. The ALJ Erred as a Matter of Law by Failing to Properly Assess the 

Opinions of Treating Physician, John I. Bailey, M.D. Plaintiff challenges whether the 

ALJ properly evaluated and gave appropriate weight to the opinions of Dr. John I. 

Bailey, M.D., a family physician. (Plaintiff’s Brief, Doc. 10 at 9-16) His opinions are 

contained in a questionnaire that he completed on March 6, 2013, a questionnaire

designed to obtain the opinions of a treating physician as to a patient’s residual 

functional capacity. (Tr. 441, 467-68). Dr. Bailey’s answers to questions 11 and 12 of the 

questionnaire include a diagnosis of atypical bipolar disorder associated with chronic 

pain, degenerative disc disease of the cervical lumbar spine, ischemic heart disease, 

status post gastric bypass and status post bladder cancer with cystectomy and 

urostomy. (Tr. 441). Given these problems, he opined that Plaintiff has marked 

restrictions in activities of daily living and extreme difficulties with maintaining social 

functioning. (Tr. 467) He also found that she would have a marked deficiency in the 

areas of concentration, persistence or pace that would significantly erode her ability to 

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complete tasks in a timely manner. (Id.) Dr. Bailey also determined that she would have 

marked limitations in her ability to understand, carry out, and remember instructions, 

respond appropriately to co-workers and perform repetitive tasks in the work place. 

(Id.) In response to question eight as to when the plaintiff first suffered the functional 

limitations at the level of severity indicated by his responses in the questionnaire, Dr. 

Bailey estimated the time period to be “10-20 years ago (from 2013) but was serious 

even before then.” (Tr. 468). The final question (#12) asked for his comments and 

prognosis to which he responded:

The chronic psychiatric burdens of this pleasant, legitimately ill 

(both medically and psychiatrically) woman are unusually severe and 

extensive and to this point have not responded to medication well at all. I 

doubt they will ever respond what most people would call well. She 

clearly has a predisposition to severe depression and has more than one 

kind of depression. Worse, there is, and she knows there is, no real 

possibility of improvement in any of her most serious medical problems 

(disc disease, heart disease, gastric bypass, absence of bladder, ostomy). 

Any emotional improvement will be slow. This woman cannot achieve 

any gainful or practical employment.

(Tr. 441).

The ALJ gave little weight to Dr. Bailey’s opinions of March 6, 2013 for a number 

of reasons:

The claimant’s biggest problem appeared to be her depression; she 

testified that she spends a portion of her day staring out a window. Dr. 

Bailey’s statements that the claimant was essentially non-functional seem 

to be out of proportion with what has [been] her lifelong level of 

functioning and even her current testimony. Dr. Bailey indicated that the 

claimant had extreme social functioning deficits, yet she testified that she 

goes to church each week. Further, other medical records fail to establish 

this level of depression. Although the condition was listed in other 

doctors’ reports along with anxiety, the claimant also reported that she 

was doing much better on Abilify (14F). Additionally, Dr. Bailey has a 

rather short treatment history with the claimant. He first examined the 

claimant in January 2013. While he indicated marked daily living 

difficulties and marked concentration difficulties, such deficits are not 

evidenced from treatment notes. In fact, although the claimant had had 

some treatment for depression in the way of medication, none of her other 

doctors in the past five years referred her to a mental health specialist or 

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mentioned that she was in a non-functioning state due to her mental 

health. In fact, Dr. Jackson actually indicated that the claimant did not 

have a sever mental impairment at all (11F). Thus, little weight is 

accorded to [] Dr. Bailey’s opinion.

(Tr. 34).

As the plaintiff’s treating physician, Dr. Bailey’s opinions “must be given 

substantial or considerable weight unless ‘good cause’ is shown to the contrary.” 

Gilabert v. Comm’r of Soc. Sec., 396 F. App’x 652, 655 (11th Cir. Sept. 21, 2010) (per 

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

shown when the: “(1) treating physician’s opinion was not bolstered by the evidence; 

(2) evidence supported a contrary finding; or (3) treating physician’s opinion was 

conclusory or inconsistent with the doctor’s own medical records.” Id. (quoting Phillips 

v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004)). Where the ALJ articulate[s] specific 

reasons for failing to give the opinion of a treating physician controlling weight, and 

those reasons are supported by substantial evidence, there is no reversible error. Id. 

(quoting Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)]).

Here, the ALJ gave little weight to Dr. Bailey’s opinions regarding the Plaintiff’s 

functional abilities given her psychiatric impairment because the ALJ found that Dr. 

Bailey’s assessment is inconsistent with Plaintiff’s “lifelong level of functioning,” her 

testimony before the ALJ and the other medical evidence in the record. On appeal, the 

Plaintiff argues that Dr. Bailey’s opinions should have been given controlling weight

but after a review of the record, the briefs and conducting oral argument, it is 

determined that the ALJ had good cause to give little weight to Dr. Bailey’s opinions 

because his conclusions regarding the Plaintiff’s ability to work are inconsistent with 

Plaintiff’s vocational and treatment history. 

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The ALJ noted that Dr. Bailey had only begun treating Plaintiff in January 2013 

(Tr. 34, 456-64). See 20 C.F.R. § 404.1527(c)(2)(i) (treating physician's opinion merits less 

weight when treating relationship is shorter). When he completed the Residual 

Functional Capacity Questionnaire, approximately two months after his initial 

examination, his opinions were based on clinical evaluations without any psychological 

testing. (Tr. 468).

Even though the Plaintiff clearly had a relevant work history prior to 2008, the 

alleged onset year, Dr. Bailey opined that she had been suffering from incapacitating 

bipolar depression for as many as twenty years and possibly longer. (Id.). Not only is 

this opinion inconsistent with Plaintiff’s work history but as the ALJ noted, even though 

Plaintiff had received some treatment for depression in the way of medication, none of 

her physicians in the five years preceding her relationship with Dr. Bailey had referred 

her to a mental health specialist or mentioned that she was in a non-functioning state 

due to her mental health (Tr. 34, 190-440).

Approximately one year before Plaintiff first visited Dr. Bailey, a consultative 

examination had been performed in January 2012. (Tr. 346). Dr. Kenneth R. Starkey 

reported that Plaintiff had rational thinking and no evidence of significant deficits for 

reasoning or judgment (Id). Her intellectual functioning was estimated at low average, 

and her attention and immediate memory appeared generally intact. Her fund of 

knowledge was generally adequate, and her GAF was 67. Dr. Starkey opined Plaintiff 

could understand, remember, and carry out simple instructions; work independently; 

work with supervisors, coworkers, and the public; and manage common work 

pressures (Tr. 347).

The record also contains an opinion by the state agency consultant, Dr. M. Hope 

Jackson, Ph. D. She opined, based on the evidence through January 6, 2012, that the 

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Plaintiff did not have a severe mental impairment, let alone one of disabling severity. 

(Tr. 357). Although non-examining, Dr. Jackson’s opinion deserves some weight, 

particularly when assessing whether good cause exists for not affording controlling 

weight to the opinions of a treating physician. 

For the foregoing reasons, the undersigned finds that the ALJ did not err by 

giving little weight to Dr. Bailey’s opinions.

B. The ALJ’s Mental and Physical RFC Determination is not Supported by 

Substantial Evidence. In her brief, plaintiff argued that the ALJ’s mental and physical 

RFC determination is not supported by substantial evidence (Doc. 10, at 16). This Court 

finds, however, that the physical and mental limitations noted by the ALJ are supported 

by substantial evidence in the record as is the RFC assessment.

Initially, the Court notes that the responsibility for making the residual 

functional capacity determination rests with the ALJ. Compare 20 C.F.R. §§ 404.1546(c) & 

416.946(c) (“If your case is at the administrative law judge hearing level . . ., the 

administrative law judge . . . is responsible for assessing your residual functional 

capacity.”) with, e.g., Packer v. Commissioner, Social Security Admin., 542 Fed. Appx. 890, 

891-892 (11th Cir. Oct. 29, 2013) (per curiam) (“An RFC determination is an assessment, 

based on all relevant evidence, of a claimant’s remaining ability to do work despite her 

impairments. There is no rigid requirement that the ALJ specifically refer to every piece 

of evidence, so long as the ALJ’s decision is not a broad rejection, i.e., where the ALJ 

does not provide enough reasoning for a reviewing court to conclude that the ALJ 

considered the claimant’s medical condition as a whole.” (internal citation omitted)). A 

plaintiff’s RFC—which “includes physical abilities, such as sitting, standing or walking, 

and mental abilities, such as the ability to understand, remember and carry out 

instructions or to respond appropriately to supervision, co-workers and work 

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pressure[]”—“is a[n] [] assessment of what the claimant can do in a work setting despite 

any mental, physical or environmental limitations caused by the claimant’s 

impairments and related symptoms.” Watkins, supra, 457 Fed. Appx. at 870 n.5 (citing 20 

C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)). In this case, the ALJ found that Plaintiff had 

the residual functional capacity (RFC) to perform light work4, except that she:

• could not reach overhead or climb ladders, ropes, or scaffolds;

• could not work around unprotected heights or dangerous equipment;

• could occasionally stoop, kneel, crouch, crawl, climb ramps or stairs, and 

operate foot controls;

• would need to alternate standing and sitting every thirty minutes but would 

not have to leave the workstation; 

• could not make judgments except as to simple, work-related decisions;

• required minimal changes to the work setting or routine;

• must avoid tasks involving a variety of instructions or tasks but was able to 

understand and carry out one-to-two-step instructions; and

• could understand and carry out detailed but uninvolved oral or written 

instructions involving few concrete variables from standardized situations.

(Tr. 28). 

To find that an ALJ’s RFC determination is supported by substantial evidence, it 

must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial 

record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL 1020428, 

*9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. 

Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.Ala. Feb. 14, 2013) 

(“’[T]he ALJ must link the RFC assessment to specific evidence in the record bearing 

upon the claimant’s ability to perform the physical, mental, sensory, and other 

 4 The full range of light work requires standing or walking six hours in an eight-hour workday. See

Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5 (S.S.A. 1983). As such, Plaintiff's contention 

that the ALJ did not articulate how much Plaintiff could stand or walk during the day (Doc. 10 at 16-17) 

lacks merit.

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requirements of work.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013)5; see also 

Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per curiam) (“The ALJ 

must state the grounds for his decision with clarity to enable us to conduct meaningful 

review. . . . Absent such explanation, it is unclear whether substantial evidence 

supported the ALJ’s findings; and the decision does not provide a meaningful basis 

upon which we can review [a plaintiff’s] case.” (internal citation omitted)).6

In order to find the ALJ’s RFC assessment supported by substantial evidence, it is 

not necessary for the ALJ’s assessment to be supported by the assessment of an 

examining or treating physician. See, e.g., Packer, supra, 2013 WL 593497, at *3 

(“[N]umerous court have upheld ALJs’ RFC determinations notwithstanding the 

absence of an assessment performed by an examining or treating physician.”); 

McMillian v. Astrue, 2012 WL 1565624, *4 n.5 (S.D. Ala. May 1, 2012) (noting that 

 5 In affirming the ALJ, the Eleventh Circuit rejected Packer’s substantial evidence 

argument, noting, she “failed to establish that her RFC assessment was not supported by 

substantial evidence[]” in light of the ALJ’s consideration of her credibility and the medical 

evidence. Id. at 892.

6 It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the 

responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the 

grounds for an RFC determination. Stated differently, “linkage” may not be manufactured 

speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather, 

must be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL 

3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s 

decision because, according to the Commissioner, overall, the decision was “adequately 

explained and supported by substantial evidence in the record”; holding that affirming that 

decision would require that the court “ignor[e] what the law requires of the ALJ[; t]he court 

‘must reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with 

sufficient reasoning for determining that the proper legal analysis has been conducted’” 

(quoting Hanna, 395 Fed. App’x at 636 (internal quotation marks omitted))); see also id. at *3 n.4 

(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have relied . . . . 

There may very well be ample reason, supported by the record, for [the ALJ’s ultimate 

conclusion]. However, because the ALJ did not state his reasons, the court cannot evaluate 

them for substantial evidentiary support. Here, the court does not hold that the ALJ’s ultimate 

conclusion is unsupportable on the present record; the court holds only that the ALJ did not 

conduct the analysis that the law requires him to conduct.” (emphasis in original)); Patterson v. 

Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon 

the reasons he gave.”).

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decisions of this Court “in which a matter is remanded to the Commissioner because 

the ALJ’s RFC determination was not supported by substantial and tangible evidence 

still accurately reflect the view of this Court, but not to the extent that such decisions are 

interpreted to require that substantial and tangible evidence must—in all cases—

include an RFC or PCE from a physician” (internal punctuation altered and citation 

omitted)); but cf. Coleman v. Barnhart, 264 F.Supp.2d 1007 (S.D. Ala. 2003). In this case, of 

course, there is a mental RFC assessment of record from a treating physician and a

mental examination report from an examining physician; however, as discussed above, 

the opinions of Dr. John Bailey were given little weight for good cause. On the other 

hand, the report of the mental examination performed by a psychologist, Dr. Kenneth R. 

Starkey (Tr. 344-347), was accorded significant weight, a determination consistent with 

substantial evidence in the record, as explained more fully below.

Importantly, in establishing Rivers’ RFC, which means determining Rivers’

“remaining ability to do work despite [his] impairments[,]” Packer, 542 Fed.Appx. at 

891—keeping a focus on the extent of those impairments as documented by the credible 

record evidence—the ALJ sifted through the medical evidence of record (see Tr. 28-35), 

along with the claimant’s testimony (see Tr. 42-56), to conclude that the residual 

functional capacity assessment is fully supported by the objective evidence, treatment 

records, the claimant’s activities, and the record as a whole. Although Plaintiff's 

functioning is not unlimited, her mild imaging findings, uneventful recovery from her 

cystectomy, and benign mental examination provide substantial evidence in support of 

the ALJ's finding that Plaintiff could perform a reduced range of light work.

For instance, the ALJ considered the September 2008 MRI showing mild 

degenerative disc disease, a mild broad-based annular bulge with small central 

protrusion at L5-S1, and a mild annular bulge with mild to moderate narrowing of the 

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left exiting foramina and mild narrowing of the right exiting foramina (Tr. 30, 212). At 

that time, Dr. Dempsey noted Plaintiff was not a surgical candidate because she had no 

herniated discs, and Plaintiff reported Lortab and Soma helped with her pain (Tr. 30, 

203, 213).

The ALJ further considered evidence that had Plaintiff completed her six-week 

course of BCG treatment for carcinoma, and did well (Tr. 30, 293). The ALJ noted that 

Plaintiff underwent a radical cystectomy in March 2011, recovering uneventfully, with 

pain controlled by oral medications (Tr. 30, 238). At discharge, the ALJ noted, Plaintiff 

could ambulate without assistance and tolerate a normal diet (Tr. 30, 238). The ALJ 

further considered that in October 2011 Plaintiff was doing well, with physical 

examination revealing a healthy woman (Tr. 31, 278). Similarly, a January 2012 checkup showed Plaintiff was doing well, with some small renal cysts but no other 

abnormalities (Tr. 31, 381).

The ALJ also noted that, the following month, Plaintiff had a stable pain level 

and denied complications from medications (Tr. 31, 367). Her cervical and lumbar 

ranges of motion were decreased but stable, but her arm and leg range of motion was 

unchanged and appropriate (Tr. 31, 368). A May 2012 stress test and echocardiogram 

looked okay (Tr. 32, 386). A May 2012 x-ray showed normal spinal alignment with disc 

space narrowing and minimal anterior spurring (Tr. 32, 406). An August x-ray showed 

some worsening, but a January 2013 MRI showed mild degenerative changes in the 

cervical spine (Tr. 32, 409, 431).

In terms of mental impairments, the ALJ noted that, at a consultative 

examination in January 2012, Plaintiff had rational thinking and no evidence of 

significant deficits for reasoning or judgment (Tr. 32-33, 346). Her intellectual 

functioning was estimated at low average, and her attention and immediate memory 

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appeared generally intact (Tr. 33, 346). Her fund of knowledge was generally adequate, 

and her GAF was 67 (Tr. 33, 346-47). Dr. Starkey opined Plaintiff could understand, 

remember, and carry out simple instructions; work independently; work with 

supervisors, coworkers, and the public; and manage common work pressures (Tr. 33, 

347).

When the ALJ considered restrictions to daily living, she only found mild 

restrictions. Plaintiff informed Dr. Starkey that she was able to “feed, bathe, groom, and 

dress herself without assistance.” (Tr. 27, 345). In addition, she told him that she could 

also “use a phone, manage money, prepare meals, shop for groceries, and drive an auto, 

all without assistance.” (Id.) Included in her daily activities that were reported to Dr. 

Starkey were caring for her ostomy bag, washing off, getting coffee, smoking cigarettes, 

taking medicine, eating, watching TV, occasionally cooking for her children, sometimes 

doing the laundry, dishwashing, visiting her friend, going to the doctor, grocery 

shopping and attending church. (Tr. 347).

This analysis has convinced this Court that the ALJ appropriately considered 

Rivers’ condition as a whole in determining his RFC. Accordingly, the ALJ’s RFC 

determination provides an articulated linkage to the medical evidence of record. The 

linkage requirement is simply another way to say that, in order for this Court to find 

that an RFC determination is supported by substantial evidence, ALJs must “show their 

work” or, said somewhat differently, show how they applied and analyzed the 

evidence to determine a plaintiff’s RFC. See, e.g., Hanna, 395 Fed. Appx. at 636 (an ALJ’s 

“decision [must] provide a meaningful basis upon which we can review [a plaintiff’s] 

case”); Ricks, 2012 WL 1020428, at *9 (an ALJ must “explain the basis for his decision”); 

Packer, 542 Fed.Appx. at 891-892 (an ALJ must “provide enough reasoning for a 

reviewing court to conclude that the ALJ considered the claimant’s medical condition as 

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a whole[]” (emphasis added)). Thus, by “showing her work”, the ALJ has provided the 

required “linkage” between the record evidence and her RFC determination necessary 

to facilitate this Court’s meaningful review of her decision.

Because substantial evidence of record supports the Commissioner’s 

determination that Rivers can perform the physical and mental requirements of a 

reduced range of light work as identified by the ALJ (see Tr. 28), and plaintiff makes no 

argument that this residual functional capacity would preclude performance of her past 

relevant work as a cashier II, the Commissioner’s fourth-step determination is due to be 

affirmed. Compare Land v. Commissioner of Social Security, 494 Fed.Appx. 47, 49-50 (11th

Cir. 2012) (“[S]tep four assesses the claimant’s RFC to determine whether the claimant is 

capable of performing ‘past relevant work.’ . . . A claimant’s RFC takes into account 

both physical and mental limitations. . . . Because more than a scintilla of evidence 

supported the ALJ’s RFC assessment here, we will not second-guess the 

Commissioner’s determination.”) with Phillips v. Barnhart, 357 F.3d 1232, 1238-1239 (11th 

Cir. 2004) (“At the fourth step, the ALJ must assess: (1) the claimant’s residual 

functional capacity []; and (2) the claimant’s ability to return to [his] past relevant work. 

As for the claimant’s RFC, the regulations define RFC as that which an individual is still 

able to do despite the limitations caused by his or her impairments. Moreover, the ALJ 

will assess and make a finding about the claimant’s residual functional capacity based 

on all the relevant medical and other evidence in the case. Furthermore, the RFC 

determination is used both to determine whether the claimant: (1) can return to [his] 

past relevant work under the fourth step; and (2) can adjust to other work under the 

fifth step . . . . If the claimant can return to [his] past relevant work, the ALJ will 

conclude that the claimant is not disabled. If the claimant cannot return to [his] past 

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relevant work, the ALJ moves on to step 5.” (internal citations, quotation marks, and 

brackets omitted; brackets added)).

C. The ALJ Failed To Properly Assess the Credibility of the Plaintiff. As part 

of her credibility finding, the ALJ concluded that Plaintiff’s impairments could 

reasonably be expected to produce some of the alleged symptoms, but that her 

statements concerning the intensity, persistence and limiting effects of these symptoms 

were not entirely credible. (Tr. 29). Plaintiff agues that the ALJ erred when she decided 

that Plaintiff’s ability to perform a few routine chores, watch TV and attend church 

provided sufficient reasons for finding her not credible. 

The Eleventh Circuit has set forth criteria to establish a disability based on 

testimony about pain and other symptoms as follows:

the claimant must satisfy two parts of a three-part test showing: (1) 

evidence of an underlying medical condition; and (2) either (a) objective 

medical evidence confirming the severity of the alleged pain; or (b) that 

the objectively determined medical condition can reasonably be expected 

to give rise to the claimed pain. If the ALJ discredits subjective testimony, 

he must articulate explicit and adequate reasons for doing so. Failure to 

articulate the reasons for discrediting subjective testimony requires, as a 

matter of law, that the testimony be accepted as true.

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.2002) (citations omitted). When such 

evidence is presented, the Commissioner must articulate explicit and adequate reasons, 

based on substantial evidence, whenever a claimant’s allegations of pain are rejected. 

Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987). When clearly articulated credibility 

findings are supported by substantial evidence, a reviewing court should not disturb 

them. Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.1995); MacGregor v. Bowen, 786 F.2d 

1050, 1054 (11th Cir.1986).

Here, the ALJ articulated numerous examples supporting her conclusion that 

Plaintiff’s subjective complaints of disabling pain were not credible. For example, while 

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Plaintiff alleged back, hip, and neck pain, the level of pain could only be described as 

minimal. The MRI taken in 2003 noted only a very mild bulging disc at L4-5 and mild 

ligamentous hypertrophy at L3-4 with no spinal or foraminal stenosis. At that time Dr. 

Patton wrote a prescription for Tylenol with Codein elixir. He ordered a bone scan and 

was to see Plaintiff in three weeks. (Tr. 190) Coming forward to 2006, Dr. Dempsey 

commented that the Plaintiff appeared with a normal gait and station and did not 

appear to be in distress. She had normal grip strength, normal biceps, triceps, 

brachioradialis reflexes and a normal distraction and compression test. She had full 

range of motion in all extremities and the lumbar region. The diagnosis was neck pain 

and back pain for which he prescribed Lortab, Soma and Lyrica. (Tr. 196-97).

Notes from the Springhill Center for Rehab Medicine dated February 13, 2012, 

contain more complaints of chronic lumbar and cervical pain. It was noted that she was 

doing well after her bladder excision secondary to cancer and described her pain level 

as stable. She did not report any complications with medications. (Tr. 367-69). She was 

prescribed Lortab and Zanaflex. The impression of the radiologist after her 2013 MRI 

was “Mild degernerative change of the cervical spine with no canal or neural foraminal 

stenosis.” (Tr. 431).

In addition to the medical records just discussed, the ALJ’s determination that 

Plaintiff’s subjective complaints were not credible is further supported by Plaintiff’s 

activities of daily living, which include driving, light cooking, grocery shopping, church 

attendance and caring for herself and her daughters. These daily activities may be 

considered in assessing pain. Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir.1984).

In sum, Plaintiff’s contention that the ALJ erred in rejecting Plaintiff’s subjective 

complaints regarding her pain is without merit. The ALJ carefully reviewed and relied 

upon the medical evidence in the record in making her credibility finding and 

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articulated reasons supported by substantial evidence in the record supporting her

conclusion that Plaintiff’s subjective complaints were not as limiting as she contended. 

Accordingly, the ALJ did not err in rejecting Plaintiff’s subjective complaints regarding 

symptoms and limitations due to pain.

CONCLUSION

In light of the foregoing, it is ORDERED that the decision of the Commissioner 

of Social Security denying plaintiff benefits be affirmed.

DONE and ORDERED this the 9th day of September, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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