IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JENNIFER FAY JONES, :

Plaintiff, :

vs. : CA 09-0622-C

MICHAEL J. ASTRUE, :

Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

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

1383(c)(3), seeking judicial review of a final decision of the Commissioner of

Social Security denying her claims for disability insurance benefits and

supplemental security income. 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. 16 & 18 (“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 post-judgment

proceedings.”)) Upon consideration of the administrative record, plaintiff’s

Case 1:09-cv-00622-C Document 20 Filed 04/22/10 Page 1 of 17
1 The Court granted the parties’ joint motion to waive oral argument in this cause.

(Doc. 17; compare id. with Doc. 14)

2 Any appeal taken from this memorandum opinion and order and judgment shall

be made to the Eleventh Circuit Court of Appeals. (See, e.g., Doc. 18 (“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.”))

2

brief, and the Commissioner’s brief,1 it is determined that the Commissioner’s

decision denying plaintiff benefits should be reversed and remanded for further

proceedings not inconsistent with this decision.2

Plaintiff alleges disability due to lymphedema. The Administrative

Law Judge (ALJ) made the following relevant findings:

3. The claimant has the following severe impairment:

lymphedema (20 CFR 404.1521 et seq. and 416.921 et seq.).

4. The claimant does not have an impairment or

combination of impairments that meets or medically equals

one of the listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 (20 CFR 404.1525, 404.1526, 416.925 and

416.926).

5. After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform the full range of sedentary

work as defined in 20 CFR 404.1567(a) and 416.967(a).

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 416.929 and SSRs 96-4p and 96-7p. The

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undersigned has also considered opinion evidence in accordance

with the requirements of 20 CFR 404.1527 and 416.927 and

SSRs 96-2p, 96-5p, 96-6p and 06-3p.

In considering the claimant’s symptoms, the undersigned must

follow a two-step process in which it must first be determined

whether there is an underlying medically determinable physical

or mental impairment(s)–i.e., an impairment(s) that can be

shown by medically acceptable clinical and laboratory

diagnostic techniques–that could reasonably be expected to

produce the claimant’s pain or other symptoms. 

Second, once an underlying physical or mental impairment(s)

that could reasonably be expected to produce the claimant’s pain

or other symptoms has been shown, the undersigned must

evaluate the intensity, persistence, and limiting effects of the

claimant’s symptoms to determine the extent to which they limit

the claimant’s ability to do basic work activities. For this

purpose, whenever statements about the intensity, persistence,

or functionally limiting effects of pain or other symptoms are

not substantiated by objective medical evidence, the

undersigned must make a finding on the credibility of the

statements based on a consideration of the entire case record.

At the hearing, the claimant testified that her legs stay swollen

causing her to have to elevate them when sleeping and sitting.

She stated that she experiences pain at a “7" or “8" on a scale of

1 to 10. She stated that she can sit no longer than 4 minutes

without her legs elevated.

The claimant testified that she attends college night classes.

She stated that she does not drive because she as (sic) no

drier’s (sic) license. She stated that she was taking Tylenol

for pain relief.

After careful consideration of the evidence, the undersigned

finds that the claimant’s medically determinable impairment

could reasonably be expected to cause the alleged symptoms;

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however, the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not

credible (as shown below) to the extent they are completely

inconsistent with the above residual functional capacity

assessment.

Treatment notes and medical records document the claimant’s

history of Lymphdema (sic).

Great weight is afforded the consultative examination of

February 1, 2007 by Dr. Michael S. Jackson. [Th]e claimant

related that she has (sic) ceased work in September of 2006 due

to Lymphedma (sic). Upon examination, Dr. Jackson also

diagnosed the claimant as having chronic Lymphedema, with

lower extremities[’] pain and swelling. He reported, however,

that her gait was normal; sensation was normal in her

lumbar spine; range of motion of the lumbar area and

cervical area was normal, bilaterally.

He reported that she does in fact have pitting edema in the lower

extremities, and might need a cane to ambulate on uneven

surfaces. He added, however, that range of motion and

strength was normal in the lower extremities.

Treatment notes from Barnes’ Family Medical Associates P.C.

dated March, 2007, ducment (sic) her edema of the lower

extremities. Dr. Stephen West, a treating source, reported on

March 8, 2007 that he “wrote her off work.” The undersigned

notes that this is some 6 months beyond her current alleged

onset of disability.

Dr. Stanley Barnes, another treating source, reported on

September 30, 2008 that the claimant had chronic lymphedema

with unknown etiology.

The claimant has never been hospitalized or referred to a

pain clinic for her condition. She acknowledged on a Daily

Activities Report that she is the care giver for her small child.

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The claimant reported that she cannot stand long enough to do

household chores. She stated that she cannot stand or walk for

any length of time and has to depend on others to perform her

outside activities for her. She indicated that she cannot drive an

automobile but indicated that she can ride in one. She stated that

[she] has to depend on others for transportation. 

At the hearing, the claimant testified that she does not drive

because she has no driver’s license. She also testified that she

attends college night classes[] (presumably with her feet

elevated) which would indicate that her pain does not

prevent her from performing sedentary activities.

Concerning the claimant’s medications, she indicated that she

no longer uses Lortab for pain relief due to side effects

(itching). She reported that she [started using] Lyrica and

Darvocet beginning on April 30, 2008 and September 30, 2008,

respectively. She reported that she uses over the counter

medication such as Tylenol for pain relief.

The undersigned acknowledges the Doctor’s Statement from

Vanity Fair Mills dated March 8, 2007. This form indicates that

the claimant could “never” return to work, but no narrative

explanation was provided and no indications of other work that

she is capable of performing. The form simply indicated she had

“pitting in both legs” and “pain in legs” and could never return

to work. This form was completed by her employer and, as

stated previously, did not considered (sic) other work

activity. It is therefore, afforded no weight.

6. The claimant is unable to perform any past relevant

work (20 CFR 404.1565 and 416.965).

...

7. The claimant was born on July 14, 1964 and was 42

years old, which is defined as a younger individual age 18-

44, on the alleged disability onset date (20 CFR 404.1563 and

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416.963).

8. The claimant has at least a high school education and

is able to communicate in English (20 CFR 404.1564 and

416.964).

9. Transferability of job skills is not material to the

determination of disability because applying the MedicalVocational Rules directly supports a finding of “not

disabled,” whether or not the claimant has transferable job

skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,

Appendix 2).

10. Considering the claimant’s age, education, work

experience, and residual functional capacity, there are jobs

that exist in significant numbers in the national economy

that the claimant can perform (20 CFR 404.1569, 404.1569a,

416.969, and 416.969a). 

In determining whether a successful adjustment to other work

can be made, the undersigned must consider the claimant’s

residual functional capacity, age, education, and work

experience in conjunction with the Medical-Vocational

Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the

claimant can perform all or substantially all of the exertional

demands at a given level of exertion, the medical-vocational

rules direct a conclusion of either “disabled” or “not disabled”

depending upon the claimant’s specific vocational profile (SSR

83-11). When the claimant cannot perform substantially all of

the exertional demands of work at a given level of exertion

and/or has nonexertional limitations, the medical-vocational

rules are used as a framework for decision-making unless there

is a rule that directs a conclusion of “disabled” without

considering the additional exertional and/or nonexertional

limitations (SSRs 83-12 and 83-14). If the claimant has solely

nonexertional limitations, section 204.00 in the MedicalVocational Guidelines provides a framework for decisionmaking (SSR 85-15).

Case 1:09-cv-00622-C Document 20 Filed 04/22/10 Page 6 of 17
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Based on a residual functional capacity for the full range of

sedentary work, considering the claimant’s age, education, and

work experience, a finding of “not disabled” is directed by

Medical-Vocational Rule 201.28.

11. The claimant has not been under a disability, as

defined in the Social Security Act, from September 11, 2006

through the date of this decision (20 CFR 404.1520(g) and

416.920(g)).

(Tr. 15-17 & 17-18 (emphasis in original; some internal citations omitted))

The Appeals Council affirmed the ALJ’s decision (Tr. 1- 3) and thus, the

hearing decision became the final decision of the Commissioner of Social

Security.

DISCUSSION

In all Social Security cases, the claimant bears the burden of proving

that she is unable to perform her previous work. Jones v. Bowen, 810 F.2d

1001 (11th Cir. 1986). In evaluating whether the claimant has met this burden,

the examiner must consider the following four factors: (1) objective medical

facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence

of pain; and (4) the claimant’s age, education and work history. Id. at 1005.

Once the claimant meets this burden, as here, it becomes the Commissioner’s

burden to prove that the claimant is capable, given her age, education and work

Case 1:09-cv-00622-C Document 20 Filed 04/22/10 Page 7 of 17
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history, of engaging in another kind of substantial gainful employment which

exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th

Cir. 1985).

The task for the Court is to determine whether the Commissioner’s

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

range of sedentary work and is not disabled under the grids, is supported by

substantial evidence. Substantial evidence is defined as more than a scintilla

and means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91

S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial

evidence exists, we must view the record as a whole, taking into account

evidence favorable as well as unfavorable to the [Commissioner’s] decision.”

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

In this case, plaintiff contends that the following errors were made: (1)

the ALJ failed to properly articulate and apply the pain standard as required by

the Eleventh Circuit; (2) the ALJ failed to issue a credibility finding in

compliance with the Eleventh Circuit law; and (3) the ALJ failed to show good

cause for not according greater weight to the opinion of her treating physician.

Because the undersigned agrees with the plaintiff on her claim that the ALJ

Case 1:09-cv-00622-C Document 20 Filed 04/22/10 Page 8 of 17
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made an improper credibility determination, and additionally finds that the

ALJ failed to meet his fifth-step burden, the Court need not consider the other

issues raised by Jones. See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir.

1985) (“Because the ‘misuse of the expert’s testimony alone warrants a

reversal,’ we do not consider the appellant’s other claims.”).

A. Credibility Determination. The Eleventh Circuit has

established a three-part pain standard that applies when a claimant attempts to

establish her disability through testimony of pain. “The pain standard requires

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

medical evidence that confirms the severity of the alleged pain arising from

that condition or (3) that the objectively determined medical condition is of

such a severity that it can reasonably be expected to give rise to the alleged

pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation

omitted). “A claimant may establish that her pain is disabling through

objective medical evidence that an underlying medical condition exists that

could reasonably be expected to produce the pain. 20 C.F.R. § 404.1529

provides that once such an impairment is established, all evidence about the

intensity, persistence, and functionally limiting effects of pain or other

symptoms must be considered in addition to the medical signs and laboratory

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findings in deciding the issue of disability.” Foote v. Chater, 67 F.3d 1553,

1562 (11th Cir. 1995). 

The Court agrees with the plaintiff that the ALJ did not properly apply

the Eleventh Circuit’s articulated pain standard because once he determined

that plaintiff’s lymphedema could reasonably be expected to produce the pain

about which she complained, he misapplied (or failed to acknowledge) several

of the 20 C.F.R. § 404.1529 factors he was required to consider in assessing

the credibility of plaintiff’s statements, see 20 C.F.R. § 404.1529(c)(3) (2009)

(“Since symptoms sometimes suggest a greater severity of impairment than

can be shown by objective medical evidence alone, we will carefully consider

any other information you may submit about your symptoms. . . . Factors

relevant to your symptoms, such as pain, which we will consider include: (i)

Your daily activities; (ii) The location, duration, frequency, and intensity of

your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv)

The type, dosage, effectiveness, and side effects of any medication you take

or have taken to alleviate your pain or other symptoms; (v) Treatment, other

than medication, you receive or have received for relief of your pain or other

symptoms; (vi) Any measures you use or have used to relieve your pain or

other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

Case 1:09-cv-00622-C Document 20 Filed 04/22/10 Page 10 of 17
3 The undersigned cannot agree with the government’s argument that the ALJ’s

misstatement in this regard was harmless error (Doc. 19, at 10) since the ALJ specifically found

that this evidence–attending college night classes–indicated that plaintiff’s pain does not prevent

her performance of sedentary activities (Tr. 17). 

4 In making these observations, the ALJ presumably was trying to suggest that

plaintiff’s daily activities are not as limited as she indicated.

5 Lymphedema is “chronic unilateral or bilateral edema of the extremities due to

accumulation of interstitial fluid as a result of stasis of lymph, which is secondary to obstruction

of lymph vessels or disorders of the lymph nodes.” THE SLOANE-DORLAND ANNOTATED

MEDICAL-LEGAL DICTIONARY, at 425 (1987). 

11

every hour, sleeping on a board, etc.); and (vii) Other factors concerning your

functional limitations and restrictions due to pain or other symptoms.”), to an

extent that this Court cannot find his credibility determination supported by

substantial evidence. In particular, the ALJ incorrectly noted that plaintiff

attends college night classes3

 and that she is the care giver for a small child.

(Tr. 16-17)4

 In fact, the record indicates that it is plaintiff’s daughter who

attends night classes (Tr. 52-53) and that her granddaughter’s other

grandmother cares for plaintiff’s granddaughter when her daughter attends

those night classes (Tr. 53). In addition, the evidence of record is clear that the

very nature of plaintiff’s condition, chronic lymphedema,5

 requires that

petitioner elevate her legs due to swelling and pain. (See, e.g., Tr. 295 & 301)

In fact, the consultative physician upon whom the ALJ relies to find that

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6 The ALJ misidentified Dr. Michelle Jackson as Dr. Michael Jackson. (See Tr. 16)

7 He did this despite the fact that plaintiff’s primary limitations are swelling and

pain, that is, non-exertional limitations/impairments, that cause the need to elevate her feet.

12

plaintiff can perform sedentary work, Dr. Michelle Jackson,6 noted the need

to elevate the legs. (Tr. 321) Thus, there is clear evidence that plaintiff must

take measures, other than medication, to relieve her swelling and pain. Finally,

the ALJ makes no mention of the fact that plaintiff wears compression hose

which, again , is a treatment, other than pain medication, she has received to

alleviate her pain and swelling. 

In light of the foregoing deficiencies in the ALJ’s credibility analysis,

the Court is unable to find that the ALJ articulated specific and adequate

reasons for discrediting plaintiff’s subjective pain/swelling/elevation

complaints. Accordingly, a remand for further proceedings is needed.

B. Plaintiff’s Ability to Perform a Full Range of Sedentary

Work. The undersigned finds there to be a more fundamental problem with the

ALJ’s decision that requires the remand of this case. The ALJ’s ultimate

conclusion was that the plaintiff is capable of performing the full range of

sedentary work and is not disabled under the grids. The ALJ did not use the

grids as a framework for decision-making; instead, he mechanically applied

the grids in finding her not disabled. (See Tr. 18)7

 This was error in light of the

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evidence in this case.

It has long been recognized in this circuit that the Commissioner of

Social Security must develop “a full and fair record regarding the vocational

opportunities available to a claimant.” Allen v. Sullivan, 880 F.2d 1200, 1201

(11th Cir. 1989) (citation omitted). The Commissioner must articulate specific

jobs that the claimant can perform given her age, education and work history,

if any, “and this finding must be supported by substantial evidence, not mere

intuition or conjecture.” See id. (citation omitted). One means by which the

Commissioner meets this burden is by reliance on the medical-vocational

guidelines (“grids”). Id. at 1201-1202 (citations omitted). Exclusive reliance

upon the grids is inappropriate, however, “‘”either when the claimant is unable

to perform a full range of work at a given residual functional level or when a

claimant has a non-exertional impairment that significantly limits basic work

skills.”’” Id. at 1202 (quoting Walker v. Bowen, 826 F.2d 996, 1002-1003

(11th Cir. 1987), in turn quoting Francis v. Heckler, 749 F.2d 1562, 1566

(11th Cir. 1985)). Normally, when non-exertional limitations are alleged “the

preferred method of demonstrating that the claimant can perform specific work

is through the testimony of a vocational expert.” MacGregor v. Bowen, 786

F.2d 1050, 1054 (11th Cir. 1986); see Francis, 749 F.2d at 1566 ("The

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preferred method of demonstrating job availability when the grids are not

controlling is through expert vocational testimony"). “‘It is only when the

claimant can clearly do unlimited types of light work . . . that it is unnecessary

to call a vocational expert to establish whether the claimant can perform work

which exists in the national economy.’” Allen, 880 F.2d at 1202 (quoting

Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. Unit A March 30, 1981));

see also Foote, supra, 67 F.3d at 1559 (“If the grids are inapplicable, the

Secretary must seek vocational expert testimony.”). Where non-exertional

impairments are present “[t]he ALJ must ‘“make a specific finding as to

whether the non-exertional limitations are severe enough to preclude a wide

range of employment at the given work capacity level indicated by the

exertional limitations.”’” Id. (citations omitted). “If nonexertional impairments

exist, the ALJ may use Medical-Vocational Guidelines as a framework to

evaluate vocational factors, but must also introduce independent evidence,

preferably through a vocational expert’s testimony, of existence of jobs in the

national economy that the claimant can perform.” Wilson v. Barnhart, 284

F.3d 1219, 1227 (11th Cir. 2002), citing Wolfe v. Chater, 86 F.3d 1072, 1077-

1078 (11th Cir. 1996). In Phillips v. Barnhart, 357 F.3d 1232, 1242 (11th Cir.

2004), the Eleventh Circuit reiterated its earlier holding that “‘[e]xclusive

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reliance on the grids is not appropriate either when [the] claimant is unable to

perform a full range of work at a given residual functional level or when a

claimant has non-exertional impairments that significantly limit basic work

skills[,]” and held that “[i]f either condition exists, the ALJ [is] required to

consult a vocational expert.” The Phillips court held that if an ALJ determines

that a claimant’s nonexertional limitations “significantly limit her basic work

skills at the sedentary work level, then the ALJ must consult a vocational

expert.” Id. at 1243 (emphasis added). 

Here, the ALJ made no specific finding regarding whether Jones’ nonexertional limitations/impairments permit her to perform the full range of

sedentary work (see Tr. 18) and, because pain is regarded as a non-exertional

impairment, Foote, supra, 67 F.3d at 1559 (“Pain is a nonexertional

impairment.”); see Phillips, supra, 357 F.3d at 1242 n.11 (“Nonexertional

limitations or restrictions affect an individual’s ability to meet the other

demands of jobs and include mental limitations, pain limitations, and all other

physical limitations that are not included in the seven strength demands.”), as

arguably is swelling, cf. Lewis v. Astrue, 2009 WL 1659365, *4 (M.D. Fla.

2009) (“Plaintiff protests the ALJ’s use of the grids for decision in this case in

light of Plaitniff’s significant nonexertional limitations. In particular, he notes

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8 Interestingly, the ALJ did obtain the services of a vocational expert at the hearing

but did not avail himself of any of the expert’s testimony with respect to the fifth-step of the

sequential evaluation process. (Compare Tr. 18 with Tr. 68-75) Perhaps this is because of the

VE’s testimony that the sedentary jobs he identified would be eliminated if an individual had

need to elevate her lower extremities. (See Tr. 74 (“As a general rule of thumb the need to

elevate your lower extremities limits your reach to the point you cannot fully function in a work

setting, so sedentary employment would not be appropriate.”))

9 Remand will also offer the ALJ the opportunity to investigate to what extent

plaintiff’s lymphedema impacts her upper extremities.

10 This Court would note that Dr. Michelle Jackson did not indicate plaintiff could

perform all unskilled sedentary jobs in the national economy. (See Tr. 321 (“[U]nfortunately

there is no cure for lymphedema, so she is just going to have some chronic discomfort and

chronic swelling. This might limit her amount of time she can stand on her feet and walk at a job

but certainly does not make her totally or completely disabled. She can certainly due (sic)

numerous sedentary positions with her current medical conditions.”)) 

16

his pain and swelling problems and environmental restrictions assessed by the

nonexamining doctor, relied upon for the RFC finding by the ALJ.”), the ALJ

erred in failing to consult a vocational expert to determine what sedentary jobs,

if any, the claimant can perform given her exertional and non-exertional

impairments and limitations.8

 On remand,9 the ALJ should follow Phillips, and

prior Eleventh Circuit precedent, and obtain the services of a vocational expert

in order to attempt to satisfy the Commissioner’s fifth-step burden of

establishing what work activity, if any, Jones is capable of performing given

her exertional and non-exertional impairments and limitations.10

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CONCLUSION

It is ORDERED that the decision of the Commissioner of Social

Security denying plaintiff benefits be reversed and remanded pursuant to

sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89,

111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for further proceedings not

inconsistent with this decision. The remand pursuant to sentence four of §

405(g) makes the plaintiff a prevailing party for purposes of the Equal Access

to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct.

2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over 

this matter. 

DONE and ORDERED this the 22nd day of April, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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