IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JERMICHAEL S. ANDERSON, *

*

 Plaintiff, *

 *

vs. *

* CIVIL ACTION NO. 15-00217-B

CAROLYN W. COLVIN, *

Commissioner of Social *

Security, *

 *

Defendant. *

ORDER

Plaintiff Jermichael S. Anderson (hereinafter “Plaintiff”)

seeks judicial review of a final decision of the Commissioner of

Social Security denying his claim for supplemental security 

income under Title XVI of the Social Security Act, 42 U.S.C. §§

1381, et seq. On June 17, 2016, the parties consented to have 

the undersigned conduct any and all proceedings in this case. 

(Doc. 18). Thus, the action was referred to the undersigned to 

conduct all proceedings and order the entry of judgment in 

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil 

Procedure 73. Upon careful consideration of the administrative 

record and the memoranda of the parties, it is hereby ORDERED

that the decision of the Commissioner be REVERSED and REMANDED.

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I. Procedural History1

Plaintiff protectively filed an application for 

supplemental security income on September 11, 2012. (Tr. 111, 

202). He alleges that he has been disabled since January 1, 

2012, due to a right leg amputation below the knee. 2 (Id. at 

112, 181). Plaintiff’s application was denied and upon timely 

request, he was granted an administrative hearing before 

Administrative Law Judge Susan Poulos (hereinafter “ALJ”) on 

January 9, 2014. (Id. at 70). Plaintiff appeared, pro se,

waiving his right to legal representation at the hearing, and 

provided testimony related to his claims. (Id. at 70-92). A 

vocational expert (“VE”) also appeared at the hearing and 

provided testimony. (Id. at 93-97). On March 28, 2014, the ALJ 

issued an unfavorable decision finding that Plaintiff is not

disabled. (Id. at 59). Plaintiff obtained legal representation 

and requested review by the Appeals Council, and on March 13, 

2015, the Appeals Council denied his request for review. (Id.

at 1-4, 50). Therefore, the ALJ’s decision dated March 28, 

 

1 The Court’s citations to the transcript in this order refer to

the page number assigned by the Agency (located in the bottom 

right hand corner of the transcript page), not the pagination 

assigned in CM/ECF. 

2 Plaintiff’s leg was amputated in 2004 after he was shot in the 

leg in 2003 and subsequently suffered a blood clot. (Tr. 79-80, 

204, 218, 226).

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2014, became the final decision of the Commissioner. 

Having exhausted his administrative remedies, Plaintiff 

timely filed the present civil action. (Doc. 1). The parties 

waived oral argument on June 17, 2016 (Doc. 17), and 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

1. Whether substantial evidence supports 

the ALJ’s RFC assessment?

2. Whether the ALJ erred in failing to 

discuss what weight, if any, she gave to 

the opinion of consultative examiner, 

Dr. Elmo Ozment, Jr., M.D.?

III. Factual Background

Plaintiff was born on January 29, 1983, and was 30 years of 

age at the time of his administrative hearing on January 9, 

2014. (Tr. 76-77, 181). Plaintiff testified that he completed 

the tenth grade in high school and has not received his GED. 

(Id. at 77, 188). He has not completed any vocational training 

after high school and has never served in the armed forces. 

(Id. at 78). Plaintiff has never had a job. (Id. at 78). 

Plaintiff testified that his right leg was amputated below 

the knee in 2003 because of a blood clot. (Id. at 79-80). 

According to Plaintiff, he has not been able to work since 

January 2012 due to back problems resulting from his use of 

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crutches over the last ten years. 3 (Id. at 80-86). Plaintiff 

testified that his right leg and his back “give out” on him, and 

he is blind in his left eye as a result of a stroke in February 

2013. (Id. at 80-86). He has to take Tylenol and Advil every 

morning for back and leg pain, which stops the pain. (Id. at 

80, 88). He has never seen a doctor about his pain. (Id. at 

85). He also has high blood pressure but does not take 

medication because he cannot afford it. (Id. at 93).

Plaintiff testified that he was on Medicaid before he went 

to prison and was in the process of obtaining a prosthetic leg. 

(Id. at 87-88). However, once in prison, the process stalled, 

and he has never gotten one. (Id.). He testified that he 

thinks that a prosthetic device would help him “a lot” because 

it would get him off of crutches, which is what is causing his 

back pain. (Id.).

Plaintiff testified that he walks with two crutches, which 

are prescribed by a doctor, and that he can walk approximately 

100 feet before his hands start to “give out” on him. (Id. at 

89, 200). According to Plaintiff, he can stand for 

approximately two or three minutes until his feet start hurting; 

 3 Plaintiff was incarcerated (for assault) at the time of his 

alleged onset date of January 1, 2012. (Tr. 77-81). Plaintiff 

testified that he incarcerated again from May through July 2013 

for unpaid traffic tickets. (Id. at 81).

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he can balance without crutches if he has something to hold 

onto; and he cannot bend or stoop. (Id. at 89-90). Plaintiff 

testified that, while he can lift while sitting down, he is 

unable to do any lifting while standing. (Id.). Plaintiff 

further testified that he can sit for “a while” but not for 

“hours and hours” because his back starts hurting. (Id. at 90-

91). 

Plaintiff testified that he lives with his mom. He takes 

care of his own personal needs, and he can take showers standing 

up. (Id. at 77, 87, 195, 226). He can cook; however, he cannot 

do any chores except folding clothes. (Id. at 92, 196). 

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. 4 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). A court may not decide the facts 

anew, reweigh the evidence, or substitute its judgment for that 

of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th 

Cir. 1986). The Commissioner’s findings of fact must be 

 4 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).

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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, *4

(S.D. Ala. June 14, 1999).

B. Discussion

An individual who applies for Social Security disability 

benefits must prove his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. Disability is defined as the “inability to 

engage in 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 12

months.” 42 U.S.C. §§ 423(d)(1)(A); see also 20 C.F.R. §§ 

404.1505(a), 416.905(a). The Social Security regulations 

provide a five-step sequential evaluation process for 

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determining if a claimant has proven his disability.5 20 C.F.R. 

§§ 404.1520, 416.920. 

In the case sub judice, the ALJ determined that Plaintiff 

has not engaged in substantial gainful activity since September 

11, 2012, the alleged onset date, and that he has the severe 

impairments of “below the right knee amputation” and left eye 

blindness (retinal venous occlusion). 6 (Tr. 61). The ALJ 

 5 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; and (4) the claimant’s age, 

education and work history. Id. 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, 836 (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 The ALJ found that Plaintiff’s hypertension was non-severe. 

(Tr. 61). 

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further found that Plaintiff does not have an impairment or 

combination of impairments that meets or medically equals any of 

the listed impairments contained in 20 C.F.R. Part 404, Subpart 

P, Appendix 1.7 (Id. at 61-62). 

The ALJ concluded that Plaintiff retains the residual 

functional capacity (hereinafter “RFC”) to perform less than the 

full range of sedentary work, with the following limitations: 

Plaintiff can “lift/carry ten pounds occasionally and less than 

ten pounds frequently; stand/walk two hours in an eight-hour 

workday; and sit six hours in an eight-hour workday. The 

claimant can occasionally push/pull with the left lower 

extremity and never with the right lower extremity. The 

claimant can never climb ladders, ropes, or scaffolds but may 

occasionally climb ramps and stairs. He can occasionally 

balance, stoop, crouch, kneel, and crawl. He must use a 

handheld assistive device at all times while standing. He must 

avoid concentrated exposure to workplace hazards, such as moving 

machinery and unprotected heights. The claimant will only have 

the ability to see with the right eye.” (Id. at 62). The ALJ 

also determined that while Plaintiff’s medically determinable 

impairments could reasonably be expected to produce the alleged 

 7 The ALJ noted that there is no medical reason that Plaintiff 

cannot wear a prosthetic device to ambulate effectively. (Tr. 

62). 

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symptoms, his statements concerning the intensity, persistence 

and limiting effects of the alleged symptoms were not entirely 

credible for the reasons explained in the decision. (Id. at 

63).

The ALJ found that Plaintiff has no past relevant work. 

(Id. at 64). Utilizing the testimony of a VE, the ALJ concluded 

that considering Plaintiff’s residual functional capacity for a 

range of sedentary work, as well as his age, education, and lack 

of work experience, there are still jobs existing in the 

national economy that Plaintiff is able to perform, such as a 

“assembler of small products,” “circuit board assembler,” and 

“order clerk,” all of which are classified as sedentary and 

unskilled. (Id. at 65). Thus, the ALJ concluded that Plaintiff 

is not disabled. (Id.).

The Court now considers the foregoing in light of the 

record in this case and the issue on appeal. 

1. Issues

A. Whether substantial evidence supports 

the ALJ’s RFC assessment?

In this case, Plaintiff argues that the ALJ’s RFC is not 

supported by substantial evidence because it requires him to 

simultaneously carry/lift ten pounds while using an unspecified 

“handheld assistive device” while standing. (Doc. 14 at 6). 

Plaintiff argues that this RFC is inconsistent with the findings 

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and opinions of consultative physician, Dr. Elmo Ozment, Jr., 

M.D., who examined Plaintiff and determined that he could not 

stand without two crutches; that his bilateral crutches were 

prescribed and medically necessary; that he uses them 100% of 

the time indoors and outdoors; and that his “ambulation depends 

on two crutches at all times.” (Tr. 227-29). The Commissioner 

does not dispute Plaintiff’s assessment of the evidence but

argues that, “apparently,” the ALJ contemplated that Plaintiff 

could use a walker, instead of crutches, and “temporarily 

balance, grab an item with one hand, and transfer it to a pouch 

attached to the walker or to an over-the-shoulder bag.” (Doc. 

15 at 7). Having reviewed the record at length, the Court finds 

that the Commissioner’s argument is misplaced. 

Residual functional capacity is a measure of what Plaintiff 

can do despite his or her credible limitations. See 20 C.F.R. § 

404.1545. Determinations of a claimant’s residual functional 

capacity are reserved for the ALJ, and the assessment is to be 

based upon all the relevant evidence of a claimant’s remaining 

ability to work despite his or her impairments, and must be 

supported by substantial evidence. See Beech v. Apfel, 100 F. 

Supp. 2d 1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 

404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 

1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 

2012 WL 997222, *4 (M.D. Ala. March 23, 2012). 

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Once the ALJ has determined the Plaintiff’s residual 

functional capacity, the claimant bears the burden of 

demonstrating that the ALJ’s decision is not supported by 

substantial evidence. See Flynn v. Heckler, 768 F.2d 1273, 1274 

(11th Cir. 1985). Plaintiff has met his burden in this case. In

this case, the ALJ found that Plaintiff is capable for 

performing sedentary work (i.e. can carry/lift 10 pounds 

occasionally), and that he must use a “hand held assistive 

device” at all times while standing. (Tr. 62). While the ALJ 

did not elaborate on what type of “hand held assistive device” 

was being referenced, the only such devices utilized by 

Plaintiff are the two crutches, which were prescribed by his 

doctor. (Id. at 200, 226-29). And, the record reflects that the 

consultative examiner, Dr. Elmo Ozment, Jr., M.D., opined that 

Plaintiff must use the two crutches at all times to ambulate. 

(Tr. 229). 

At the administrative hearing, Plaintiff testified that,

while he is able to lift objects when seated, he cannot lift 

anything when he is utilizing the two crutches needed to 

ambulate. (Id. at 90, 199). As noted, the Commissioner does 

not dispute this record evidence, but instead argues that the 

ALJ “apparently” contemplated Plaintiff using a walker, instead 

of crutches, and using a pouch or over-the-should bag to 

accommodate the item(s) being carried. Of course, the problem 

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with this assertion is that it is speculative at best, and it is 

not found anywhere in the ALJ’s decision. 

“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.” Jones v. 

Colvin, 2015 U.S. Dist LEXIS 132460, at *79, 2015 WL 5737156, at 

*23 (S.D. Ala Sept. 30, 2015); see also Durham v. Astrue, 2010 

U.S. Dist. LEXIS 100888, 2010 WL 3825617, at *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 v. Astrue, 395 

Fed. Appx. 634, 636 (11th Cir. 2010)). In Durham, 2010 U.S. 

Dist. LEXIS 100888, at *3, the court explained: “In his brief, 

the Commissioner sets forth the evidence on which the ALJ could 

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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). See also 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.”).

Because the ALJ’s RFC determination is simply not supported by 

the record, this case must be remanded.

Also problematic is the fact that the hypothetical that the 

ALJ provided to the VE was flawed. The ALJ posed a hypothetical 

question involving an individual of Plaintiff’s age, education,

and work experience, with a residual functional capacity at the 

sedentary exertional level, with the ability to push and pull 

occasionally with the left and never with the right, who can 

never climb ladders, ropes, or scaffolds, who can occasionally 

climb ramps or stairs, who can occasionally balance with a 

handheld assistive device, who can occasionally stoop, crouch, 

kneel, and crawl, who must have no exposure to workplace hazards 

such as moving machinery and unprotected heights, who has the 

ability to see only with the right eye, and who must be limited 

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to jobs performed using “a handheld assistive device at all 

times when standing.” (Tr. 94-96). The VE testified that such 

an individual could perform jobs such as an assembler of small 

products, a circuit board assembler, and an order clerk. (Id.

at 95). 

“In order for a VE’s testimony to constitute substantial 

evidence, the ALJ must pose a hypothetical question which 

comprises all of the claimant’s impairments.” Moreno v. Astrue, 

366 Fed. Appx. 23, 29 (11th Cir. 2010) (citing Vega v. 

Commissioner of Soc. Sec., 265 F.3d 1214, 1220 (11th Cir.

2001)). “However, the ALJ is not required to include findings 

in the hypothetical that the ALJ has found to be unsupported.” 

Id. (citations omitted) (“The ALJ did not err by failing to 

include [the claimant’s] subjective symptoms in his hypothetical 

to the VE because the ALJ was not required to include 

limitations that it found to be unsupported.”); see also Stremba 

v. Barnhart, 171 Fed. Appx. 936, 939 (3d Cir. 2006) (“‘all 

impairments’ means only those that are medically established. . 

. . Limitations that are medically supported but are also 

contradicted by other evidence in the record may or may not be 

found credible. . . . Of course, credibility determinations are 

to be made by the ALJ.”) (citing 20 CFR § 404.1527) (citations 

and internal quotation marks omitted).

In this case, the ALJ did not make clear that the 

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referenced “handheld assistive device” consisted of two crutches 

which were required for ambulation. (Tr. 95). In other words, 

there is a huge difference between relying on two crutches to 

ambulate versus utilizing a cane or other device. This is 

particularly true where the record establishes that Plaintiff 

cannot lift while using the two crutches to ambulate. As argued 

by Plaintiff, the ALJ’s incomplete hypothetical affected the 

reliability of the VE’s testimony regarding Plaintiff’s ability 

to perform jobs which require occasional lifting/carrying, 

stooping, crouching, kneeling, and crawling. 

For each of the reasons set forth above, the Court finds 

that the RFC is not supported by substantial evidence and must 

be reversed and remanded.8 On remand, the ALJ shall specifically 

address Dr. Ozment’s opinion that Plaintiff is required to use 

two crutches in order to ambulate, and Plaintiff’s testimony 

that he cannot lift while using the two crutches to ambulate. 

The ALJ should specifically address the weight given to Dr. 

Ozment’s opinions and how the restriction to using two crutches 

at all times would affect Plaintiff’s ability to lift/carry ten 

pounds occasionally, as well as how it would affect, if at all, 

his ability to occasionally stoop, crouch, kneel, and crawl. 

 8 Because this case is being reversed and remanded, the 

undersigned has not addressed the remaining issues raised in 

Plaintiff’s brief.

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The ALJ should also utilize the services of a vocational expert 

to identify what sedentary jobs, if any, Plaintiff can perform 

in light of the restriction that he use two crutches 100% in 

order to ambulate. See Tilton v. Commissioner of Social 

Security, 2010 WL 610633 (S.D. Ohio Feb. 19, 2010) (remanding 

case for further proceedings where substantial evidence did not 

support the ALJ’s decision that Plaintiff had the RFC to carry 

twenty pounds occasionally, given Plaintiff’s treating 

physicians’ opinions that Plaintiff needed two crutches to 

ambulate). Accordingly, this matter is remanded for further 

administrative proceedings. 

V. Conclusion 

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby ORDERED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for 

supplemental security income be REVERSED and REMANDED.

DONE this 30th day of September, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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