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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TRENNIS W. CHAPMAN, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15-0085-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff 

seeks judicial review of an adverse social security ruling 

denying a claim for Supplemental Security Income (hereinafter 

SSI) (Docs. 1, 12). The parties filed written consent and this 

action was referred to the undersigned Magistrate Judge to 

conduct all proceedings and order judgment in accordance with 28 

U.S.C. § 636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b)

(see Doc. 21). Oral argument was waived in this action (Doc. 

23). After considering 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 procedures not inconsistent with the 

Orders of this Court.

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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. 1983), which must be supported by substantial evidence. 

Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial 

evidence 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 administrative hearing, Plaintiff was 

forty-seven years old, had completed a ninth-grade education 

(Tr. 42), and had previous work experience as a construction 

worker and laborer (Tr. 56). Chapman alleges disability due to 

arthritis of the right knee, a history of degenerative disk

disease of the lumbar spine, possible ulnar nerve entrapment of 

the right hand, and obesity (Doc. 12 Fact Sheet).

The Plaintiff applied for SSI benefits on February 7, 2012, 

alleging a disability onset date of August 15, 2010 (Tr. 19, 

128-36). An Administrative Law Judge (ALJ) denied benefits, 

determining that although he could not return to his past 

relevant work, Chapman was capable of performing specific light 

work jobs (Tr. 19-34). Plaintiff requested review of the 

hearing decision (Tr. 14-15), but the Appeals Council denied it 

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(Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Chapman 

alleges that: (1) The ALJ did not properly consider the medical 

evidence, substituting his opinion for those of the doctors; (2) 

the ALJ improperly determined that several of his impairments 

were not severe; (3) the ALJ failed to consider his obesity; and 

(4) he is unable to perform light work (Doc. 12). Defendant has 

responded to—and denies—these claims (Doc. 17). The Court will 

now summarize the relevant evidence of record.

Treatment records from the Federal Bureau of Prisons show 

that Chapman was treated, generally, for morbid obesity, GERD, 

asthma, and hypertension (see generally Tr. 263-564). On 

November 5, 2010, Plaintiff was seen for his mental health after 

having gained some “inner comfort” from taking Amitriptyline1 and 

Risperdal;2 he had a diagnosis of unspecified psychosis and was 

estimated to have a GAF score of 71-100 (Tr. 373-74). On March 

24, 2011, Chapman complained of bilateral knee pain, but had 

full range of motion (hereinafter ROM) in both knees (Tr. 298, 

492-94). The pain was thought to be exacerbated by prolonged 

standing and was suggested to be secondary to osteoarthritis and 

																																																							 1Amitriptyline, marketed as Elavil, is used to treat the symptoms 

of depression. Physician's Desk Reference 3163 (52nd ed. 1998). 

2 Risperdal is used “for the management of the manifestations of 

psychotic disorders.” Physician's Desk Reference 1310-13 (52nd ed. 

1998).

Case 1:15-cv-00085-M Document 24 Filed 12/11/15 Page 3 of 15
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worsened by his obesity. On March 30, 2011 x-rays of the knees 

were negative except for moderate degenerative joint disease, 

greatest in the patellofemoral (Tr. 550). On June 20, Plaintiff 

received a corticosteroid injection for bilateral knee pain (Tr. 

485-88). On December 7, 2011, a chest x-ray was negative (Tr. 

543).

On February 27, 2012, Chapman went to University of South 

Alabama Medical Center (hereinafter USAMC) where he was 

diagnosed to have diabetes mellitus type 2 and was treated for 

uncontrolled hypertension (Tr. 568-92). A chest x-ray showed no 

acute chest disease with lung changes consistent with chronic 

airways disease. 

On March 10, Plaintiff was admitted to Mobile Infirmary 

Medical Center, through the Emergency Room, for a week following 

complaints of dizziness, syncope, general weakness, emesis, and 

profound dehydration (Tr. 593-609). On musculoskeletal 

examination, Chapman had normal ROM with no edema or tenderness 

(Tr. 600). Dr. Prince C. Uzoije diagnosed him to have a urinary 

tract infection and adjusted his overall medication regimen.

On April 11, Plaintiff was seen at Franklin Primary Health 

Center, Inc. (hereinafter Franklin PHC) for complaints of 

chronic lower back pain and bilateral knee pain (Tr. 619-23). A 

lumbar spine x-ray showed lower lumbar facet arthropathy and 

marked degenerative changes of the L5-S1 disc; x-rays of the 

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knees showed mild degenerative changes bilaterally (Tr. 623). 

On May 11, 2012, non-examiner Whitney McCants, a Single 

Decision Maker (hereinafter SDM) for the Social Security 

Administration reviewing the evidence of record as of that date, 

completed a residual functional capacity evaluation indicating 

that Chapman was capable of lifting and carrying up to ten 

pounds frequently and twenty pounds occasionally (Tr. 67-68, 72; 

see generally Tr. 60-72). Plaintiff could stand or walk and sit 

six hours a day; he was unlimited in his ability to use hand and 

foot controls. Plaintiff was capable of climbing, stooping, 

kneeling, and crawling occasionally and balancing frequently; he 

would have to avoid working around machinery and heights.

On May 11, 2012, went to Franklin PHC for complaints of 

bilateral knee and lower back pain; he was advised to use a cane 

(Tr. 637-39). 

On May 23, 2012, Kenneth Randall Starkey, Psy.D., performed 

a consultative psychological evaluation and found Plaintiff to 

be of low average range of intellectual functioning; insight and 

judgment seemed generally adequate (Tr. 625-28). Chapman’s 

diagnosis was Antisocial Personality Disorder; a secondary 

diagnosis was Adjustment Disorder with Depressed Mood in full 

remission. Starkey reported a GAF of 64.3 He thought 

																																																							 3A GAF score between 61 and 70 indicates “[s]ome symptoms OR some 

difficulty in social, occupational, or school functioning, but 

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Plaintiff’s prognosis was guarded, but that his motivation was 

good. As for functional capacity, the Psychologist stated:

Mr. Chapman’s ability to understand, 

remember, and carry out simple/concrete 

instructions appears good (from a 

psychological perspective). His ability to 

work independently (vs. with Close 

Supervision) appears adequate (especially 

for simple/concrete tasks he has been 

instructed to complete). His ability to 

work with supervisors, co-workers and the 

general public appears marginal (at the 

present time). His ability to work with job 

pressures also appears marginal. If awarded 

disability benefits, Mr. Chapman should be 

able to manage these benefits without the 

need for assistance.

(Tr. 628).

On August 13, 2012, Plaintiff went to Franklin PHC for back 

and left ankle pain that he rated as ten on a ten-point scale; 

Lortab4 was prescribed (Tr. 633-36). On November 16, Chapman 

returned to Franklin PHC for treatment of his hypertension, 

diabetes, and left ankle pain; the ankle was tender, with 

minimal swelling, and moderate pain with motion (Tr. 652-57). 

The lumbar spine was tender with moderate pain on motion. Gait 

was antalgic. An x-ray of the left ankle demonstrated arthritic 

change involving the tibial talar joint and calcaneal spurring. 

																																																																																																																																																																				 generally functioning pretty well, has some meaningful interpersonal 

relationships.” See

https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm

4Error! 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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On January 16, 2013, Plaintiff complained of back and joint 

pain, but made no mention of his ankle; there was no joint 

swelling or muscle weakness (Tr. 648-51). On March 18, right 

shoulder examination demonstrated tenderness and acute pain in 

the AC joint with crepitus; strength tests of the supraspinatus 

and external rotation were abnormal (Tr. 641-45). Pain limited 

ROM. Left shoulder examination was normal. An x-ray of the 

left shoulder confirmed prior surgical history;5 a chest x-ray 

showed no acute disease (Tr. 646).

On January 22, 2013, Plaintiff was admitted to Mobile 

Infirmary for eight nights, through the Emergency Room, after a 

week of shortness of breath, by Dr. Uzoije; his discharge 

diagnosis included, among other things, acute exacerbation of 

chronic obstructive pulmonary disease and atrial fibrillation 

with rapid ventricular response (Tr. 666-725). He was noted to 

have mild congestive heart failure. On discharge, Chapman was 

to follow up with Franklin and cardiology doctors.

On February 28, Chapman was examined by Dr. Stanley N. 

Thornton of Cardiology Associates, complaining of shortness of 

breath, left shoulder pain, and numbness in his right hand pinky 

finger; Plaintiff reported no limb pain or swelling or muscle 

weakness or aches (Tr. 659-65). Chapman had an irregular heart 

																																																							 5On May 3, 2015, Plaintiff stated that he had never had surgery 

on his left shoulder (Tr. 733).

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rate; musculoskeletal examination was normal. Dr. Thornton’s 

assessment was obstructive sleep apnea, coronary artery disease, 

atrial fibrillation, hypertension, and diastolic and systolic 

congestive heart failure for which his prescription medication 

regimen was changed. On April 12, 2013 Plaintiff returned to 

see Dr. Thornton, complaining of shoulder pain he asserted to be 

dislocated; he was referred to an orthopedic doctor (Tr. 810-

14). The cardiovascular examination was normal.

On May 3, Plaintiff went to Franklin PHC for left shoulder 

(rotator cuff) pain (Tr. 731-34). Examination showed left 

shoulder tenderness and pain with ROM as well as right knee 

tenderness; he walked with a cane. 

On May 21, Cardiologist Thornton completed a heart 

questionnaire indicating that Plaintiff had a class II heart 

condition that would moderately limit his ability to work (Tr. 

726-27). The Doctor declined to say whether or not Chapman 

could work an eight-hour day. He noted that fatigue was a 

factor but would not prevent functioning in everyday activities 

or work; physical activity would increase fatigue, but would not 

prevent adequate functioning. Thornton also stated that the 

fatigue would not require reclining or napping.

On May 24, Plaintiff was admitted to Mobile Infirmary, for 

three days, for complaints of shortness of breath and a cough 

for four days; he denied chest pain, but exhibited leg swelling, 

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arthralgias and left shoulder pain (Tr. 748-809). The 

musculoskeletal exam demonstrated some edema, normal ROM, and no 

tenderness. Chapman was discharged, in stable condition with 

the following diagnoses: congestive heart failure, acute asthma 

exacerbation, diabetes mellitus, hypertension, and hypokalemia; 

Plaintiff was told to follow up with his doctor at Franklin in a 

week. On June 23, Chapman returned to the Infirmary for left 

shoulder pain he rated at six; there was no numbness or 

radiation (Tr. 740-47). On exam, he had normal ROM. He was in 

stable condition and diagnosed to have chronic pain syndrome; 

Ultram6 was prescribed (Tr. 728-30). 

On June 28, 2013, Dr. Andre J. Fontana, Orthopaedic

Surgeon, examined Chapman for left shoulder discomfort, lower 

back pain, and a history of other impairments; he walked without 

assistance (Tr. 737-39). In the cervical spine, Plaintiff had 

45o flexion, 45o rotation to the right and left, and 15o lateral 

flexion to the left and right; grip strength was 5/5. Chapman 

had full ROM in the left shoulder with some popping and a little 

tenderness over the acromioclavicular joint. Heel and toe gait 

were good, though Plaintiff walked with a slight waddling gait; 

motor was 5/5. Straight leg raise was 90o sitting and 70o 

supine. ROM in the left hip was 0 degrees of internal rotation; 

																																																							 6Error! Main Document Only.Ultram is an analgesic “indicated for 

the management of moderate to moderately severe pain.” Physician's 

Desk Reference 2218 (54th ed. 2000). 

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right hip had full range of internal and external rotation. 

There was minimal crepitus in his right knee with no apparent 

swelling. Fontana’s impression was right knee arthritis, 

history of degenerative disk disease of the lumbar spine, 

possible ulnar nerve entrapment of the right hand, and possible 

AC joint injury of the left shoulder. The Orthopaedic stated 

that Chapman “should not do any pushing or pulling with heavy 

arm controls of the left arm. No lifting over 20 pounds, no 

climbing, no kneeling, no crawling. He cannot be around moving 

machinery” (Tr. 737). The Doctor said that he had considered 

the evidence provided in making his assessment. On July 15, 

2013, Fontana completed a physical capacities evaluation in 

which he indicated that Plaintiff could sit, stand, and walk for 

eight hours at a time and during the day; he could lift and 

carry up to twenty-five pounds occasionally and five pounds 

frequently (Tr. 736). Chapman could perform simple grasping in 

either hand, fine manipulation in the left hand, but could not 

use arm controls in either arm; the Orthopaedic did not express 

an opinion as to whether or not Plaintiff could use leg 

controls. Chapman could reach frequently, bend and squat 

occasionally, but could never crawl or climb; he was mildly 

restricted in driving automotive equipment, moderately 

restricted in being around moving machinery, and totally 

restricted in being around unprotected heights.

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This concludes the Court’s summary of the evidence.

In bringing this action, Chapman claims that the ALJ did 

not properly consider the medical evidence, substituting his 

opinion for those of the doctors in fashioning his residual 

functional capacity (hereinafter RFC) (Doc. 12, pp. 2-6). 

Plaintiff specifically takes issue with the weight given to Dr.

Fontana and non-examiner McCants. 

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 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. § 416.945(a)(3)

(2015). The Court further notes 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);7 see also 20 C.F.R. § 416.927.

In his determination, the ALJ found that Chapman had the 

“residual functional capacity to perform light work as defined 

																																																							

					 7The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

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in 20 C.F.R. 416.967(b)8 with additional limitations. The 

claimant can do work that does not require climbing, kneeling, 

crawling, or pushing or pulling. The claimant can do work that 

permits him to avoid hazards, dangerous machinery, and heights” 

(Tr. 25). After summarizing the medical evidence, the ALJ gave 

significant weight to the conclusions of Cardiologist Thornton 

and Orthopaedic Surgeon Fontana, great weight to SDM McCants, 

moderate weight to Clinical Psychologist Starkey, and little 

weight to Psychologist Hinton (Tr. 28-31). The ALJ also found 

that Chapman’s testimony of pain and limitations were not 

credible to the extent alleged (Tr. 31-32), a finding 

unchallenged in this action.

In addressing the evidence provided by Fontana, the ALJ 

specifically found “that the record [was] not consistent with 

the conclusion that the claimant [was] limited to only 

occasionally lifting and carrying six to ten pounds” (Tr. 30). 

The balance of the ALJ’s evaluation of Fontana’s opinions is as 

																																																							 8

“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” (footnote not in original). 

Case 1:15-cv-00085-M Document 24 Filed 12/11/15 Page 12 of 15
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follows:

The claimant’s clinical signs have been 

consistent with the conclusions that the 

claimant retained a significant portion of 

his functionality. Specifically, the 

undersigned notes that the record includes 

clinical signs of only “a slight” waddling 

gait, a “good” toe and heel gait, intact 

sensation, five of five strength of his 

lower extremities, only “a minimal amount” 

of crepitus regarding his right knee, no 

appearance of swelling, no atrophy of the 

right shoulder and normal right shoulder 

strength, and 90 degrees of movement during 

a straight-leg raising examination when in a 

sitting position and 70 degrees during a 

straight-leg raising examination when in a 

supine position (Exhibits B10F/2-6 and 

B16F). As the record is generally 

consistent with these medical opinions, the 

undersigned gives significant weight to 

these medical opinions.

(Tr. 30). 

The Court notes, as Plaintiff has pointed out, that the 

ALJ’s finding that Chapman is capable of frequently lifting and 

carrying of ten pounds places him squarely within the light work 

requirements and at odds with Dr. Fontana’s conclusion. If the 

ALJ had accepted the Orthopaedic’s conclusion, Plaintiff would 

be only capable of, at most, sedentary work.

The Court agrees with Plaintiff that the overall record 

provides evidence that supports Fontana’s conclusion and that is 

contrary to the ALJ’s conclusion. Specifically, an x-ray in 

April 2011 demonstrated moderate degenerative joint disease in 

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the knees bilaterally (Tr. 550). An x-ray of the lumbar spine 

in April 2012 demonstrated marked degenerative changes; an x-ray 

of the knees showed mild degenerative changes bilaterally (Tr. 

623). In May 2012, Chapman was advised to use a cane (Tr. 637-

39). An x-ray of the left shoulder in March 2013 demonstrated 

previous surgery though there had been none (Tr. 646, 733). An 

examination at Franklin in March 2013 showed tenderness, 

crepitus, and abnormal strength tests in the supraspinatus and 

external rotation strength tests of the right shoulder; though 

there was full ROM, pain was a limiting factor (Tr. 643). 

These records, when considered cumulatively, cast serious 

doubt on the ALJ’s rejection of Dr. Fontana’s conclusion that 

Chapman can lift and carry only up to five pounds on a frequent 

basis. Though the ALJ accepted the majority of the Orthopaedic 

Surgeon’s opinions, the rejection of this limitation is not 

supported by substantial evidence. This conclusion gains 

strength in the fact that it is provided by an examining 

specialist who provided the only physical capacities evaluation 

in this record.9 

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

the Commissioner's decision is not supported by substantial evi-

																																																							 9The Court further notes that SDM McCants concluded that 

Plaintiff could lift and carry only ten pounds, but that conclusion 

was based on evidence pre-dating much of the evidence cited herein as 

support for Fontana’s decision and was made without examination.

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dence. 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 a 

determination of Chapman’s ability to work. Judgment will be 

entered by separate Order.

DONE this 10th day of December, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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