IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

PATRICK RAMSEY, : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 05-0424-M

JO ANNE B. BARNHART, : 

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 which denied claims for disability insurance benefits and

Supplemental Security Income (hereinafter SSI). The parties

filed written consent and this action has been referred to the

undersigned Magistrate Judge to conduct all proceedings and order

the entry of judgment in accordance with 28 U.S.C. § 636(c) and

Fed.R.Civ.P. 73 (see Doc. 20). Oral argument was heard on

January 25, 2006. Upon consideration of the administrative

record, the memoranda of the parties, and oral argument, it is

ORDERED that the decision of the Commissioner be AFFIRMED and

that this action be DISMISSED.

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

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1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

Plaintiff was born November 7, 1970. At the time of the

administrative hearing, Ramsey was thirty-four years old, had

completed a high school education (Tr. 111), and had previous

work experience as a carpenter’s helper, a cashier, and a butcher

(Tr. 112). In claiming benefits, Plaintiff alleges disability

due to diabetes, hypertension, leg pain, mental retardation, and

his need for a cane (Doc. 11).

The Plaintiff filed applications for disability benefits and

SSI on May 5, 2005 (Tr. 42-44, 91-92). Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who

determined that Ramsey “retain[ed] the functional capacity to

perform work at all exertional levels” (Tr. 17; see generally Tr.

11-19). Plaintiff requested review of the hearing decision (Tr.

9-10) by the Appeals Council, but it was denied (Tr. 5-7).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Ramsey alleges

that: (1) The Appeals Council failed to properly consider newlysubmitted evidence; (2) the ALJ did not properly consider the

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opinions and conclusions of his treating physician; (3) he meets

the requirements of Listing 9.08; (4) no examining physician

provided an opinion as to his residual functional capacity; (5)

the ALJ did not identify the limitations associated with

Plaintiff’s severe impairment; and (6) the ALJ ignored certain

evidence (Doc. 10). Defendant has responded to—and denies—these

claims (Doc. 14).

Plaintiff first claims that the Appeals Council failed to

properly consider newly-submitted evidence. Ramsey refers to the

psychological evaluation performed by Psychologist David W.

Blanton on April 28, 2005, sixteen days after the ALJ’s decision

was rendered (see Tr. 104-07). Plaintiff has argued that that

evidence demonstrates that Plaintiff has a mental impairment. 

Defendant has argued that the evidence was properly considered by

the Appeals Council and that this Court should not review it. 

It should be noted that "[a] reviewing court is limited to

[the certified] record [of all of the evidence formally

considered by the Secretary] in examining the evidence." Cherry

v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985). However, “new

evidence first submitted to the Appeals Council is part of the

administrative record that goes to the district court for review

when the Appeals Council accepts the case for review as well as

when the Council denies review.” Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994). 

However, “when the [Appeals Council] has denied review, we will

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look only to the evidence actually presented to the ALJ in

determining whether the ALJ’s decision is supported by

substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th

Cir. 1998), cert. denied, 525 U.S. 1124 (1999).

If, however, the Appeals Council accepts the case for

review, we consider that new evidence as well, though it is to be

examined differently from the balance of the evidence. See

Falge, 150 F.3d at 1323. Keeton directs this Court to look at

the new evidence and determine whether it meets the three-prong

standard for remanding this action. Keeton, 21 F.3d at 1068. To

make a determination of remand, "the claimant must establish

that: (1) there is new, noncumulative evidence; (2) the evidence

is 'material,' that is, relevant and probative so that there is a

reasonable possibility that it would change the administrative

result, and (3) there is good cause for the failure to submit the

evidence at the administrative level." Caulder v. Bowen, 791

F.2d 872, 877 (11th Cir. 1986).

In examining the action at hand, the Court notes that the

Appeals Council denied review of the additional evidence (Tr. 5). 

The Court has considered the submitted evidence and finds that

the three-prong standard has not been met. Specifically, the

Court finds that the second prong is not met because there is not

a reasonable possibility that considering it will change the

administrative result. This is so because Ramsey has never

asserted that he suffered a mental impairment until the

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The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

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submission of this evidence. No such assertion exists in the

paperwork submitted in connection with Plaintiff’s applications

(Tr. 50-56) or at the hearing before the ALJ (Tr. 108-24). The

Court finds that Ramsey’s claim that the Appeals Council did not

properly consider this evidence is without merit.

Plaintiff next claims that the ALJ did not accord proper

legal weight to the opinions, diagnoses and medical evidence of

Plaintiff's physicians. Ramsey refers to the records of Dr.

Frank L. Dozier (Doc. 10, pp. 4-6). It should be noted that

"although the opinion of an examining physician is generally

entitled to more weight than the opinion of a non-examining

physician, the ALJ is free to reject the opinion of any physician

when the evidence supports a contrary conclusion." Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);1 see also 20

C.F.R. § 404.1527 (2005).

Dr. Dozier treated Plaintiff from April 25, 1994 through

August 16, 2004 (Tr. 81-82, 90). The first three treatment notes

date from April/May 1994 (Tr. 82) and pre-date Ramsey’s alleged

disability onset date of June 2, 2001 (Tr. 42). Dozier’s next

treatment note is April 9, 2002, at which time he noted that

Plaintiff had not taken his medications for eight years and that

his visit at that time was to begin taking medications again for

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his diabetes (Tr. 81). Ramsey next saw the doctor a year later,

twice within one week; Plaintiff stated on the second of those

visits that he was feeling “ok” (id.). On July 23, 2003, Dozier

noted that Plaintiff had been out of medications for hypertension

and diabetes for at least a month; Ramsey’s only complaint was

that his feet hurt (Tr. 90). Nearly thirteen months later, on

August 16, 2004, the doctor noted that Plaintiff had been out of

medications for three-to-four months; Ramsey was trying to get

disability because his legs hurt all of the time (id.). Dozier

gave him sample medications and stated that he would “try to help

him proceed to some type of disability as [he felt] like he may

need to have this for his continued medical care” (id.). 

The only other medical evidence of record came by way of a

consultative examination by Dr. Mohammed A. Nayeem on June 26,

2003 (Tr. 83-87). After a thorough physical, the doctor

diagnosed Ramsey to have diabetes mellitus and noted that

Plaintiff had failed to take any medication in the last two

months. Nayeem also found him to suffer “[d]iabetic

polyneuropathy with ataxia and stumbling gait;” Ramsey used a

“cane to balance and prevent himself from falling and not because

of his back or any problem with his legs” (Tr. 86). The doctor

also noted “[d]iabetic retinopathy with sharply reduced distant

vision” (id.). Dr. Nayeem also diagnosed “[c]hronic alcoholism,

which is possibly contributing to all the above symptomatology”

as well as chronic tobacco use (id.). The doctor’s concluding

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remarks were as follows: “It seems that the main problem for

this man is that he is diverting the money. Instead of buying

the medications, he is buying tobacco and alcohol. Once he

starts taking the treatment for his diabetes and stops drinking

and smoking, he should be fully and 100% functional” (Tr. 87). 

The ALJ faithfully reported these medical findings (Tr. 15-

16). Though his discussion of Dozier’s notes focused on Ramsey’s

non-compliance with his medical regimen, the treating physician’s

records do bear out those findings and offer little more in the

way of medical evidence. The ALJ went into more detail in

summarizing Dr. Nayeem’s notes, but it was the more thorough

examination. The ALJ went on to “give substantial weight to Dr.

Nayeem’s opinion regarding the claimant’s functional abilities”

while not stating the specific weight given to Dr. Dozier’s

opinion (Tr. 17). 

The Court notes that the ALJ is required to "state

specifically the weight accorded to each item of evidence and why

he reached that decision." Cowart v. Schweiker, 662 F.2d 731,

735 (11th Cir. 1981). The Court finds the ALJ’s failure to state

the weight he gave Dr. Dozier’s opinion to be, at most, harmless

error. While Dozier treated Ramsey, the medical notes do not

reveal that he ever actually examined him, certainly not in as

thorough a manner as Nayeem. Though Dozier indicated his desire

to help Plaintiff with his disability claim, his own medical

notes do not support a finding of disability. 

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More to the point, Dozier’s records reveal a patient who

fails to follow his medical regimen. The Social Security

regulations state that “[i]n order to get benefits, you must

follow treatment prescribed by your physician if this treatment

can restore your ability to work.” 20 C.F.R. § 404.1530(a)

(2005). The regulation goes on to state that “[i]f you do not

follow the prescribed treatment without a good reason, we will

not find you disabled or, if you are already receiving benefits,

we will stop paying you benefits.” 20 C.F.R. § 404.1530(b)

(2005); see also Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir.

1998). The Court finds that Plaintiff’s claim that the ALJ did

not properly consider the opinions and conclusions of his

treating physician to be without merit.

Ramsey also claims that he meets the requirements of Listing

9.08. Plaintiff specifically refers to the disability listing of

diabetes mellitus with “[n]europathy demonstrated by significant

and persistent disorganization of motor function in two

extremities resulting in sustained disturbance of gross and

dexterous movements, or gait and station.” 20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing 9.08A (2005). 

The Court finds no merit in this claim. While Ramsey

correctly asserts that Dr. Nayeem diagnosed him to suffer

neuropathy and noted his use of a cane, he fails to note Nayeem’s

opinion that he is not following his medical regimen and that by

doing so he would be one hundred percent functional. As noted

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earlier, the disability regulations specifically state that

benefits will not be awarded to a claimant who fails to follow

prescribed treatment.

Plaintiff next claims that the ALJ committed error in

failing to obtain a residual functional capacity (hereinafter

RFC) assessment from any of the examining physicians. Ramsey

admits, however, in his own argument that while such a statement

is desirable, the lack of one does not invalidate the examination

(Doc. 10, p. 2) (citing 20 C.F.R. § 416.919n(c)(6)). The Court

notes that the ALJ is responsible for determining a claimant’s

RFC. 20 C.F.R. § 404.1546 (2005). The ALJ’s conclusion that

Plaintiff can perform a full range of work, based on Dr. Nayeem’s

report and the testimony of a vocational expert (see Tr. 121-22),

is supported by substantial evidence. The Court finds that

Nayeem’s thorough examination provides in substance, if not in

form, his opinion as to Plaintiff’s residual functional capacity. 

Ramsey’s claim otherwise is without merit.

Plaintiff next claims that the ALJ did not identify the

limitations associated with his severe impairment (Doc. 10, pp.

6-7). Ramsey points out the ALJ’s finding that he suffered from

a severe impairment of “diabetes mellitus, adult onset, type II”

(Tr. 18, ¶ 4), and notes that the Eleventh Circuit Court of

Appeals, in Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984),

held that "[a]n impairment can be considered as not severe only

if it is a slight abnormality which has such a minimal effect on

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"An impairment or combination of impairments is not severe

if it does not significantly limit your physical or mental

ability to do basic work activities."

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the individual that it would not be expected to interfere with

the individual's ability to work, irrespective of age, education,

or work experience." Brady v. Heckler, 724 F.2d 914, 920 (11th

Cir. 1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf.

20 C.F.R. § 404.1521(a) (2005).2 The Court notes that the

eleventh circuit has gone on to say that "[t]he 'severity' of a

medically ascertained disability must be measured in terms of its

effect upon ability to work, and not simply in terms of deviation

from purely medical standards of bodily perfection or normality." 

McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). Ramsey

argues that because the ALJ found him to have a severe

impairment, yet failed to identify the limitations associated

with his diabetes, his decision cannot stand.

While the Court understands Plaintiff’s argument and sees

some merit in it from a theoretical perspective, the Court

further notes that the ALJ’s decision was not reached in a

vacuum. Though acknowledging that Ramsey suffered from diabetes,

the ALJ further found him capable of performing his past relevant

work; this conclusion was reached because of Dr. Nayeem’s

complete and thorough examination and the testimony of the

vocational expert. The ALJ’s failure to identify the specific

limitations Ramsey suffered in connection with his diabetes is,

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at most, harmless error and provides no basis for returning this

action for further consideration.

Plaintiff’s final claim is that the ALJ ignored certain

evidence. Ramsey has more specifically argued that the ALJ

ignored Dr. Nayeem’s findings that he suffered from diabetic

neuropathy and retinopathy and used a case for balance (Doc. 10,

pp. 7-8).

The Court finds no merit in this argument. Plaintiff has

ignored Dr. Nayeem’s opinion that Ramsey would be fully

functional if he would follow his medical regimen. The Court,

however, cannot overlook Dr. Nayeem’s opinion and finds that the

ALJ has not ignored it either.

Plaintiff has raised six different claims in bringing this

action. All are without merit. Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Perales,

402 U.S. at 401. Therefore, it is ORDERED that the Secretary's

decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947,

950 (5th Cir. 1980), and that this action be DISMISSED. Judgment

will be entered by separate order.

DONE this 25th day of January, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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