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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY L. HANSON, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 13-0443-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405(g), Plaintiff seeks 

judicial review of an adverse social security ruling which 

denied a claim for disability insurance benefits (Docs. 1, 12). 

The parties filed written consent and this action has been 

referred to the undersigned Magistrate Judge to conduct all 

proceedings and enter judgment in accordance with 28 U.S.C. § 

636(c) and Fed.R.Civ.P. 73 (see Doc. 23). Oral argument was 

waived in this action (Doc. 22). Upon consideration of the 

administrative record and the memoranda of the parties, it is 

ORDERED that the decision of the Commissioner be REVERSED and 

that this action be REMANDED for further administrative action 

not inconsistent with the Orders of this Court.

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

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Cir. 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).

At the time of the most recent administrative hearing, 

Hanson was fifty years old, had completed a high school 

education (Tr. 52), and had previous work experience as a 

delivery truck driver, concrete truck driver, and an automobile 

parts clerk (Tr. 74). Plaintiff alleges disability due to a 

history of deep vein thrombosis (hereinafter DVT) and 

degenerative changes of the right knee (Doc. 12 Fact Sheet).

Hanson filed a protective application for disability 

benefits on April 28, 2010 (Tr. 167-70; see also Tr. 23). 

Benefits were denied following a hearing by an Administrative 

Law Judge (ALJ) who determined that although he could not return 

to his past relevant work, there were specific light work jobs 

that Plaintiff could perform (Tr. 23-31). Hanson requested 

review of the hearing decision (Tr. 18-19) by the Appeals 

Council, but it was denied (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not 

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supported by substantial evidence. Specifically, Hanson alleges 

that: (1) The ALJ did not properly consider the opinions of the 

treating physicians; (2) the ALJ did not properly consider his 

complaints of pain and limitation; (3) the ALJ’s residual 

functional capacity (hereinafter RFC) determination is 

unsupported by the evidence; and (4) the ALJ did not pose a 

proper hypothetical to the Vocational Expert (hereinafter VE) 

(Doc. 12). Defendant has responded to—and denies—these claims 

(Doc. 18). The relevant evidence of record follows.

On December 23, 2008, Dr. C. H. Wilson, IV, an Orthopaedic

Surgeon, examined Hanson for recurring right knee pain; the 

doctor noted that Plaintiff was in no acute distress and had

right knee range of motion (hereinafter ROM) from 0 to 85 

degrees (Tr. 292-93, 350; see generally Tr. 288-95). Hanson had 

diffuse pain and mild to moderate effusion with no warmth or 

redness associated with the knee joint; x-rays revealed no acute 

abnormality. Plaintiff was recommended for physical therapy 

with restrictions from stooping, climbing, or prolonged 

standing. On February 20, 2009, the Orthopaedist noted that 

Hanson had made good progress, having full ROM in his knee with 

no effusion and minimal pain; his diagnosis was right knee 

degenerative changes (Tr. 290). Plaintiff was encouraged to 

continue his knee exercises and conditioning. On April 28, 

2010, Wilson noted that ROM was 0 to 130 degrees with mild pain; 

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Hanson was told to use ice on his knee (Tr. 291). On May 28, 

2010, Dr. Wilson’s notes indicate that Plaintiff’s pain had 

resolved and that he had only minimal tenderness (Tr. 289). 

On September 1, 2010, Dr. William Gewin, an Internist 

specializing in pulmonary disease, reported that Hanson had pain 

and swelling in his right leg, similar to previous episodes of 

DVT (Tr. 296-99, 349). The Doctor noted swelling, in spite of 

his use of a compression stocking, but indicated that Plaintiff 

was in no acute distress. Venous Doppler studies showed right 

leg compression that appeared chronic.

Records from Dr. Glenn Esses, a Vascular Surgeon, on 

September 2, 2010, reveal his examination of Hanson for right 

leg heaviness, pain, and swelling (Tr. 313-17, 348). Plaintiff 

was unable to wear his compression stocking because of his 

symptoms. The Doctor noted that he had been treating Hanson for 

about ten years for DVT. Hanson was admitted to Mobile 

Infirmary Medical Center for five nights for recurrent pain in 

the right thigh and lateral thigh region (Tr. 300-12). Though 

there was no evidence of DVT, there was evidence of chronic 

debris noted throughout the right lower extremity; there was 

also evidence of severe venous reflux throughout the deep veins 

in the extremity (Tr. 309). 

On November 4, 2010, Orthopaedic Wilson noted that Hanson’s 

pain was confined to the medial joint line of the right knee; 

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ROM was 0 to 130 degrees (Tr. 318-19). Plaintiff was given a 

steroid injection. 

Emergency Room records from Mobile Infirmary demonstrate 

that Hanson was seen on December 3, 2010, complaining of neck 

pain and right upper extremity tingling following a motor 

vehicle collision (Tr. 337-47). He was in no distress and was 

non-tender over the cervical spine and neck muscles; Hanson had 

full ROM in both upper extremities. There was no tenderness to 

palpation of any joints or muscle group. Plaintiff was given 

some nonsteroidal pain meds and muscle relaxants. 

On February 4, 2011, Hanson returned to the Emergency Room 

with complaints of intermittent sharp chest pain with shortness 

of breath (Tr. 322-36). Chest x-rays revealed no active 

pathology; an EKG was normal. He was admitted to the hospital 

for four nights (Tr. 371-95). A CT scan showed no pulmonary 

embolus. Hanson was told to stop smoking (Tr. 385). Plaintiff 

was discharged in improved, but stable, condition with a guarded 

prognosis; the discharge diagnosis was atypical chest pain. 

On December 29, 2010, Dr. Gewin completed a clinical 

assessment of pain indicating that Hanson’s pain distracted him 

from adequately performing work (Tr. 320). Gewin was unable to 

assess how pain medications affected Hanson’s performance.

On January 7, 2011, Dr. Esses completed a physical 

capacities evaluation indicating that Hanson was capable of 

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sitting, standing, or walking for one hour each at a time and 

during an eight-hour day (Tr. 321). Hanson was capable of 

lifting and carrying up to five pounds frequently and twentyfive pounds occasionally; he would have no trouble using his

hands for simple grasping, pushing and pulling of arm controls, 

and fine manipulation. Hanson was not able to use either leg 

for pushing and pulling of leg controls. Esses further 

indicated that Plaintiff could occasionally bend, squat, crawl, 

and reach, but could never climb. On that same date, the Doctor 

completed a pain form in which he indicated that Hanson’s pain 

distracted him from adequately performing work and that 

medication side effects could be expected to be severe and limit 

his effectiveness because of distraction, inattention, and 

drowsiness (Tr. 396).

On May 10, 2011, Plaintiff was admitted to Mobile Infirmary

for one night, through the Emergency Room, following three-tofive days of swelling and pain in his right lower leg (Tr. 351-

70). The pain was mild, similar to past episodes, and 

exacerbated by activity. Hanson was noted to have normal ROM, 

though there was moderate edema of the right lower extremity 

with calf tenderness. Venous Dopplers of the lower legs showed 

no DVT on either side, though there was chronic debris noted 

throughout the right lower extremity (Tr. 356, 370). 

On December 18, 2011, Plaintiff returned to the Mobile 

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Infirmary Emergency Room for pain in the right ankle and thigh 

for the previous three-to-five days (Tr. 407-32). The pain was 

moderate, similar to prior episodes, and aggravated by movement; 

symptoms included loss of sensation and tingling. Hanson had 

normal ROM, though there was right leg swelling with truncated 

nodules in the ankle area. There was no evidence of DVT. 

Plaintiff was discharged in stable, good condition.

At the first evidentiary hearing, on October 24, 2011, 

Hanson testified that he had worked though November 15, 2009 

when he was laid off because there was no work for him (Tr. 50-

72). He stated that he saw Dr. Gewin only rarely and Dr. Esses 

only when he was having trouble with his leg, the last time 

being September 2010; he had last seen his Orthopaedic in 

December 2010 (Tr. 58). Plaintiff said that his right knee 

pops, hurting every day; he elevates the leg above his heart. 

If the pain gets too bad, he takes Lortab.1 He has sharp pain in 

his thigh most of the time that Hanson rated as seven on a tenpoint scale; elevating the leg drops the pain level to four or 

five. He has to sit for about half-a-day with his leg elevated. 

He can walk no more than fifteen minutes without his knee or 

legs bothering him; he can stand no longer than an hour. 

Plaintiff can sit for only an hour. Hanson testified that he 

																																																							 1Error! Main Document Only.Lortab is a semisynthetic narcotic 

analgesic used for “the relief of moderate to moderately severe pain.” 

Physician's Desk Reference 2926-27 (52nd ed. 1998).

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cleans a little around the house; he does some cooking and 

laundry, but nothing outside. Plaintiff can and does drive. 

At the second evidentiary hearing, on April 18, 2012, 

Plaintiff testified that he had been to the hospital a week 

earlier for swelling and pain in his right leg (Tr. 40-44). 

Hanson stated that his leg has steadily gotten worse since 2001, 

swelling up so bad that he cannot walk, sit, or drive. For 

relief, he props his leg up higher than his heart, sometimes 

four-to-five hours at a time. In between those periods, he 

washes clothes or dishes if necessary. Plaintiff testified that 

on the day he went to the hospital, he had severe pain and 

swelling and that this was not normal (Tr. 42). This concludes 

the review of the relevant evidence.

In bringing this action, Hanson has asserted that the ALJ 

did not properly consider the opinions of the treating 

physicians. Plaintiff specifically references Drs. Esses and 

Gewin (Doc. 12, pp. 21-22). 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);2 see also 20 C.F.R. § 

																																																							

					 2The Eleventh Circuit, in the en banc decision Bonner v. City of 

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

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404.1527 (2013).

In her determination, the ALJ rejected Internist Gewin’s 

conclusions regarding Hanson’s pain as unsupported by his 

examination notes, inconsistent with the record as a whole, and 

contradicted by Plaintiff’s own testimony (Tr. 27-28). The 

Court further notes that Gewin examined Hanson only once in the 

two years’ worth of medical records post-dating the asserted 

disability date of November 15, 2009. While the fact that there 

was only a single exam would not invalidate his conclusions, the 

lack of medical evidence to support them does. 

The ALJ gave great weight to Dr. Esses’ conclusion that 

Hanson was able to sit, stand, and walk, each, for an hour at a 

time while giving little weight to his conclusion that an hour 

each for those activities during an eight-hour period was all 

that he could do (Tr. 28). The ALJ found these latter 

conclusions unsupported by the Doctor’s medical records, the 

record as a whole, and Hanson’s work history and testimony. The 

Court notes that Dr. Esses, like Dr. Gewin, apparently examined 

Plaintiff only once during the two years following his onset 

date, though he did admit him to the hospital following that 

visit. Nevertheless, Esses’ conclusions do not have medical 

support in his own notes or in this record. The Court finds 

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

1981.

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substantial support for the ALJ’s rejection of Drs. Esses’ and 

Gewin’s conclusions regarding Plaintiff’s pain and limitation.

Hanson next claims that the ALJ did not properly consider 

his pain (Doc. 12, pp. 21-28). The standard by which the 

Plaintiff's complaints of pain are to be evaluated 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 be reasonably expected to give rise to the alleged 

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

(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 

1986)). The Eleventh Circuit Court of Appeals has also held 

that the determination of whether objective medical impairments 

could reasonably be expected to produce the pain was a factual 

question to be made by the Secretary and, therefore, "subject 

only to limited review in the courts to ensure that the finding 

is supported by substantial evidence." Hand v. Heckler, 761 

F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 

F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 

(11th Cir. 1986). Furthermore, the Social Security regulations 

specifically state the following:

statements about your pain or other symptoms 

will not alone establish that you are 

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disabled; there must be medical signs and 

laboratory findings which show that you have 

a medical impairment(s) which could 

reasonably be expected to produce the pain 

or other symptoms alleged and which, when 

considered with all of the other evidence 

(including statements about the intensity 

and persistence of your pain or other 

symptoms which may reasonably be accepted as 

consistent with the medical signs and 

laboratory findings), would lead to a 

conclusion that you are disabled.

20 C.F.R. 404.1529(a) (2013).

In her determination, the ALJ found that although Hanson’s 

impairments caused him pain, his “statements concerning the 

intensity, persistence and limiting effects of these symptoms 

[were] not credible” (Tr. 27). The ALJ went on to note that the 

medical records did not support his claims of debilitating pain 

as doctors noted that his pain, swelling, and edema were mild at 

worst and that he retained full range of motion in his right leg 

(Tr. 27). The ALJ noted that the treatment was conservative, 

relying on ice packs, leg elevation, physical therapy at home, 

medication, and the use of compression stockings (Tr. 27). The 

ALJ also noted that Hanson only rarely required medical 

treatment (Tr. 27).3 Furthermore, the ALJ noted that, by his own 

																																																							 3

The Court notes that Plaintiff makes much of the ALJ’s finding 

that he only rarely sought medical care, pointing out four specific 

Emergency Room treatments (Doc. 12, p. 24). The Court finds the 

argument without merit, noting that one visit followed a motor vehicle 

collision (Tr. 337-47), one was for chest pains (Tr. 322-26, 371-95), 

while the third was for problems associated with his right leg (Tr. 

351-70), and the fourth was, again, for problems associated with his 

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testimony, Plaintiff indicated that he was not laid off from his 

jobs for medical reasons and that he sought unemployment 

payments for a period he now claims to have been disabled though 

he sought work when those benefits ceased (Tr. 27-28). Finally, 

the ALJ noted that Hanson’s testimony regarding his most recent 

Emergency Room visit was inconsistent as he first reported the 

pain and swelling to be abnormal, though later characterizing 

them as an everyday occurrence (Tr. 28). The Court would 

further note that Plaintiff testified that his pain does not 

require him to take pain medication though it has been 

prescribed for him. The Court finds that the ALJ has provided 

many reasons, supported by substantial evidence, for rejecting 

Plaintiff’s assertions of pain. Hanson’s claim otherwise is 

without merit.

Hanson next claims that the ALJ’s RFC determination is 

unsupported by the evidence (Doc. 12, pp. 3-21). The Court 

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

RFC. 20 C.F.R. § 404.1546 (2013). That decision cannot be 

based on “sit and squirm” jurisprudence. Wilson v. Heckler, 734 

F.2d 513, 518 (11th Cir. 1984). However, the Court also notes 

																																																																																																																																																																				 leg, for which no records exist. While the first two hospital visits 

are not to be ignored, they do not form the basis of Hanson’s 

disability claim and only seek to emphasize the ALJ’s finding that 

Plaintiff only rarely sought treatment for his purported disabling 

impairments. More specifically, the Court notes that there are no 

treatment records from Hanson’s physicians after the examination by 

Orthopaedic Wilson on November 4, 2010, nineteen months before the 

ALJ’s determination.

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that the social security regulations state that Plaintiff is 

responsible for providing evidence from which the ALJ can make 

an RFC determination. 20 C.F.R. § 404.1545(a)(3). 

In her determination, the ALJ found that Hanson had the RFC 

to perform light work4

except the claimant is limited to work which 

will only require the claimant to: 

occasionally lift/carry 25 pounds; 

frequently lift/carry 10 pounds; sit 1 hour 

at a time and 6 hours during an 8-hour 

workday; stand/walk 1 hour at a time and 6 

hours during an 8-hour workday; never 

operate foot controls with the right leg; 

never climb ladders/scaffolds/ropes; never 

kneel, crouch or crawl; never work around 

unprotected heights or dangerous equipment; 

and occasionally climb ramps/stairs.

(Tr. 26). 

The Court notes that, for the most part, this RFC is

similar to the physical capacities evaluation completed by 

Hanson’s treating doctor (Tr. 321) though there are some 

differences. The Court will focus, however, on Hanson’s 

																																																							 4“Light work involves lifting no more than 20 pounds at a time 

with frequent lifting or carrying of objects weighing up to 10 pounds. 

Even though the weight lifted may be very little, a job is in this 

category when it requires a good deal of walking or standing, or when 

it involves sitting most of the time with some pushing and pulling of 

arm or leg controls. To be considered capable of performing a full or 

wide range of light work, you must have the ability to do 

substantially all of these activities. If someone can do light work, 

we determine that he or she can also do sedentary work, unless there 

are additional limiting factors such as loss of fine dexterity or 

inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b) 

(2013).

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assertion that Dr. Esses found him able to bend and reach only 

occasionally, a finding the ALJ accepted but did not include in 

his findings (Doc. 12, p. 10). The Court acknowledges the ALJ’s

acceptance of these conclusions as shown by her giving “great 

weight” to that portion of Esses’ opinion (Tr. 28). 

The Court finds this particularly relevant in light of 

Plaintiff’s claim that the ALJ did not pose a proper 

hypothetical to the VE (Doc. 12, p. 10-11; cf. Tr. 75-76). The 

Eleventh Circuit Court of Appeals has held that an ALJ's failure 

to include severe impairments suffered by a claimant in a 

hypothetical question to a vocational expert to be reversible 

error where the ALJ relied on that expert's testimony in 

reaching a disability decision. Pendley v. Heckler, 767 F.2d 

1561 (11th Cir. 1985). More recently, in Winschel v. 

Commissioner of Social Security, 631 F.3d 1176, 1181 (11th cir. 

2011), the Eleventh Circuit Court of Appeals held that, after 

determining that a claimant had a moderate limitation in 

maintaining concentration, persistence, or pace, an ALJ had to 

either determine that the limitation would not affect the 

claimant’s ability to work or include that limitation as part of 

the hypothetical question to the VE. Although Hanson does not 

have a moderate limitation in maintaining concentration, 

persistence, or pace, the Court finds that the reasoning of 

Winschel is instructive here.

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The ALJ, in examining the VE, presented a hypothetical 

question encompassing the components of what would become her 

finding of Hanson’s RFC (Tr. 75). The VE responded that 

although he could not perform his past previous work, there were 

two light work jobs5 that Hanson would be capable of performing 

(Tr. 75-76). In her determination, the ALJ summarized the VE’s 

testimony and then relied on it to find that Plaintiff was not 

disabled (Tr. 30).

The problem arises in that the ALJ failed to include in the 

hypothetical question Dr. Esses’ conclusion that Plaintiff was 

able to reach and bend only occasionally; likewise, the ALJ did 

not state that those limitations would not affect Hanson’s 

ability to work as required in Winschel. The two jobs that the 

VE said that Plaintiff was capable of performing, based on the 

hypothetical, were courier and school bus monitor (Tr. 30, 76). 

The Court has reviewed the descriptions of those jobs, in the 

Dictionary of Occupational Titles, and found the description for 

courier to be as follows:

Delivers messages, telegrams, 

documents, packages, and other items to 

business establishments and private homes, 

traveling on foot or by bicycle, motorcycle, 

automobile, or public conveyance. May keep 

																																																							 5Plaintiff has posed an objection to a third job found by the VE 

and the ALJ that Hanson could perform and though that objection may be 

correct (Doc. 12, p. 20), the Court declines to address the argument

in light of the Court’s other findings.

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log of items received and delivered. May 

obtain receipts or payment for articles 

delivered. May service vehicle driven, such 

as checking fluid levels and replenishing 

fuel. May be designated according to item 

delivered, as Telegram Messenger (tel. & 

tel.).

See http://www.occupationalinfo.org/23/230663010.html.6 The 

description for the second position, school bus monitor, is as 

follows:

Monitors conduct of students on school 

bus to maintain discipline and safety: 

Directs loading of students on bus to 

prevent congestion and unsafe conditions. 

Rides school bus to prevent altercations 

between students and damage to bus. 

Participates in school bus safety drills. 

May disembark from school bus at railroad 

crossings and clear bus across tracks.

See http://www.occupationalinfo.org/37/372667042.html.

The Court notes that it is not its responsibility to fill 

in the blanks when the ALJ leaves gaps in the determination. 

However, a cursory review of the Dictionary may have led to the 

conclusion that the ALJ’s failure to include Plaintiff’s 

limitation in bending and reaching in the RFC and the 

hypothetical question to have been, at most, harmless error. 

However, the Court cannot reach that decision. The Court cannot 

																																																							 6This description is based on Listing 230.663-010 in the 

Dictionary of Occupational Titles. Though the VE and the ALJ cited 

Listing 237.667-010, the Court found no such listing.

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say that the ALJ’s determination that Hanson is capable of 

performing the jobs of courier and school bus monitor is 

supported by substantial evidence.

Based on review of the entire record, the Court finds that 

the Commissioner's decision is not supported by substantial evidence. Therefore, it is ORDERED that the action be REVERSED and 

REMANDED to the Social Security Administration for further 

administrative proceedings consistent with this opinion, to 

include, at a minimum, a supplemental hearing for the gathering 

of evidence regarding what work Plaintiff can perform. Judgment 

will be entered by separate Order.

DONE this 23rd day of June, 2014.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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