1 This cause was scheduled to come on for oral argument before the undersigned on

January 3, 2006 in Selma, Alabama (Doc. 15); however, by order dated December 22, 2005, the

Court sua sponte canceled oral argument and informed the parties that the case would be decided

based upon the administrative record and proposed report and recommendations previously filed

by the parties (Doc. 19). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

JOHNNIE WHITE, :

Plaintiff, :

vs. CA 05-0243-BH-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

REPORT AND RECOMMENDATION

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 his claims for disability insurance benefits and

supplemental security income. This action is before the Magistrate Judge for

entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Upon consideration of the administrative record, plaintiff's proposed report and

recommendation, and the Commissioner's proposed report and

recommendation,1

 it is determined that the decision to deny benefits should be

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 1 of 20
2

affirmed.

Plaintiff alleges disability due to insulin-dependent diabetes mellitus,

Type II, hypertension, borderline intellectual functioning, sleep apnea, gouty

arthritis, and morbid obesity. The Administrative Law Judge (ALJ) made the

following relevant findings:

3. The claimant has “severe” impairments, including

borderline intellectual functioning, diabetes mellitus,

hypertension and obesity.

4. The claimant’s impairments, considered individually and

in combination, do not meet or equal in severity any impairment

set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1.

5. The claimant’s allegations of pain and functional

limitations are not credible.

6. The claimant retains the residual functional capacity to

occasionally lift and/or carry up to 50 pounds; frequently lift

and/or carry up to 25 pounds; stand and/or walk for 6 hours out

of 8 hours; sit for 6 hours out of 8 hours; push and/or pull with

hand and/or foot controls, limited to only occasionally push

and/or pull with hand and/or foot controls, limited to only

occasionally push and/or pull with right leg; never climb

ladders, ropes or scaffolds; frequently climb ramps or stairs;

frequently balance, stoop, kneel, or crouch; occasionally crawl;

no manipulative limitations; no visual limitations; no

communicative limitations; unlimited exposure to extreme cold,

extreme heat, wetness, humidity, noise, vibration, fumes, odors,

dusts and gases and avoid all exposure to hazardous unprotected

heights. I find the claimant has the following non-exertional

limitations: I find he is not significantly limited in the following:

the ability to remember locations and work-like procedures;

ability to understand and remember very short and simple

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 2 of 20
3

instructions; ability to carry out very short and simple

instructions; the ability to perform activities within a schedule,

maintain regular attendance and be punctual within customary

tolerances; ability to sustain an ordinary routine without special

supervision; ability to work in coordination with or proximity to

others without being distracted by them; ability to make simple

work-related decisions; ability to interact appropriately with the

general public; ability to ask simple questions or request

assistance; ability to accept instructions and respond

appropriately to criticism from supervisors; ability to get along

with coworkers or peers without distracting them or exhibiting

behavioral extremes; ability to maintain socially appropriate

behavior and to adhere to basic standards of neatness and

cleanliness; ability to respond appropriately to changes in the

work setting; ability to be aware of normal hazards and take

appropriate precautions; ability to travel in unfamiliar places or

use public transportation; ability to set realistic goals or make

plans independently of others. I find he is moderately limited in

the following: his ability to understand and remember detailed

instructions; ability to carry out detailed instructions; and ability

to maintain attention and concentration for extended periods. I

find he is able to follow simple work routines and sustain

attention to routine tasks for extended periods; able to relate

well to others and adapt to normal changes.

7. The claimant can perform past relevant work.

8. The claimant is not disabled within the meaning of the

Social Security Act. 

(Tr. 25-26) The Appeals Council affirmed the ALJ’s decision (Tr. 5-7) and

thus, the hearing decision became the final decision of the Commissioner of

Social Security.

DISCUSSION

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4

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

that he is unable to perform his 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 it becomes the Commissioner's burden to

prove that the claimant is capable, given his age, education and work 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 he can perform his past

relevant work as a van driver and delivery truck helper, 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."

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 4 of 20
2 This Court's review of the Commissioner's application of legal principles,

however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

3 As recognized in the ruling, use of this test is likely to be “fallacious and

insupportable” because “[w]hile ‘delivery jobs,’ ‘packaging jobs,’ etc., may have a common

characteristic, they often involve quite different functional demands and duties requiring varying

abilities and job knowledge.”

4 The Dictionary of Occupational Titles' descriptions can be relied upon to define

the job as it is usually performed in the national economy.

5

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

Although the claimant bears the burden of demonstrating the inability

to return to his past relevant work, the Commissioner of Social Security has an

obligation to develop a full and fair record. Schnorr v. Bowen, 816 F.2d 578,

581 (11th Cir. 1987) (citations omitted). Social Security Ruling 82-61

recognizes three possible tests for determining whether or not a claimant

retains the capacity to perform her past relevant work. They are as follows:

1. Whether the claimant retains the capacity

to perform a past relevant job based on a broad

generic, occupational classification of that job,

e.g., "delivery job," "packaging job," etc.3

 

 

 2. Whether the claimant retains the capacity

to perform the particular functional demands and

job duties peculiar to an individual job as he or

she actually performed it. 

3. Whether the claimant retains the capacity

to perform the functional demands and job duties

of the job as ordinarily required by employers

throughout the national economy.4

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6

Under § 404.1520(e) of the Commissioner's regulations, a claimant will be

found to be "not disabled" when it is determined that he retains the residual

functional capacity to perform the actual functional demands and job duties of

a particular past relevant job or the functional demands and job duties of the

occupation as generally required by employers throughout the national

economy. SSR 82-61.

In this case, the ALJ has relied upon test three above to determine that

the claimant can perform his past relevant work as a van driver and delivery

truck helper. (Tr. 24-25 (“At the hearing, I asked the vocational expert to

identify work performed by the claimant in the past fifteen years, indicating

the title of the job, and the skill and exertional level of each job. The

vocational expert testified that the claimant had worked as a: van driver

(medium/semiskilled); truck/helper (medium/unskilled) and general (city)

laborer (heavy/unskilled). 20 C.F.R. §§ 404.1520(e) & 416.920(e) provide that

an individual will be found ‘not disabled’ when it is determined that a claimant

retains the residual functional capacity to perform past relevant work. This

includes performance of the actual functional demands and duties of a

particular past relevant job or the functional demands and duties of the

occupation as generally required by employers throughout the national

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 6 of 20
7

economy. The vocational expert was queried as to whether the abovedescribed residual functional capacity would preclude the performance of any

of the identified jobs. The vocational expert testified that the residual

functional capacity would not preclude the performance of work as a van

driver and truck/helper. Upon consideration of the record, including the

vocational expert’s testimony, I find that the claimant retains the residual

functional capacity to perform his past relevant work.”)) 

Section 404.1520(e) of the Commissioner's regulations requires a

review and consideration of a plaintiff's residual functional capacity and the

physical and mental demands of the past work before a determination can be

made that the plaintiff can perform his past relevant work. Social Security

Ruling 82-62 provides that evaluation under § 404.1520(e) "requires careful

consideration of the interaction of the limiting effects of the person's

impairment(s) and the physical and mental demands of . . . h[is] PRW to

determine whether the individual can still do that work." See also Lucas v.

Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990) (to support a conclusion

that a claimant "is able to return to her past work, the ALJ must consider all

the duties of that work and evaluate her ability to perform them in spite of her

impairments").

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 7 of 20
8

The RFC to meet the physical and mental demands of jobs a

claimant has performed in the past (either the specific job a

claimant performed or the same kind of work as it is customarily

performed throughout the economy) is generally a sufficient

basis for a finding of "not disabled." 

 

...

The decision as to whether the claimant retains the functional

capacity to perform past work which has current relevance has

far-reaching implications and must be developed and explained

fully in the disability decision. Since this is an important and,

in some instances, a controlling issue, every effort must be made

to secure evidence that resolves the issue as clearly and

explicitly as circumstances permit. 

Sufficient documentation will be obtained to support the

decision. Any case requiring consideration of PRW will contain

enough information on past work to permit a decision as to the

individual's ability to return to such past work (or to do other

work). Adequate documentation of past work includes factual

information about those work demands which have a bearing on

the medically established limitations. Detailed information

about strength, endurance, manipulative ability, mental demands

and other job requirements must be obtained as appropriate.

This information will be derived from a detailed description of

the work obtained from the claimant, employer, or other

informed source. Information concerning job titles, dates work

was performed, rate of compensation, tools and machines used,

knowledge required, the extent of supervision and independent

judgment required, and a description of tasks and

responsibilities will permit a judgment as to the skill level and

the current relevance of the individual's work experience.

SSR 82-62. In finding that a claimant has the capacity to perform a past

relevant job, the decision of the Commissioner must contain among the

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 8 of 20
9

findings, a finding of fact as to the claimant's residual functional capacity, a

finding of fact as to the physical and mental demands of the past

job/occupation, and a finding of fact that the claimant's residual functional

capacity would permit a return to the past job or occupation. Id.

Plaintiff contends that the ALJ made the following errors: (1) he erred

in failing to accord proper weight to the opinion of the treating physician Dr.

Charles M. Soppet; (2) he erred in failing to consider the effects of plaintiff’s

morbid obesity on his ability to work; (3) he improperly assessed plaintiff’s

credibility; and (4) he failed to resolve a conflict between the vocational

expert’s testimony and the Dictionary of Occupational Titles.

A. Weight to be Accorded a Treating Physician’s Opinion. In the

Eleventh Circuit “the testimony of a treating physician must be given

substantial or considerable weight unless ‘good cause’ is shown to the

contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

The ALJ must clearly articulate the reasons for giving less

weight to the opinion of the treating physician, and the failure to

do so is reversible error. We have found “good cause” to exist

where the doctor’s opinion was not bolstered by the evidence,

or where the evidence supported a contrary finding. We have

also found good cause where the doctors’ opinions were

conclusory or inconsistent with their own medical records.

Id. (internal citations omitted). In this case, the plaintiff contends that the ALJ

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 9 of 20
10

failed to even consider, much less accord appropriate weight, to the February

17, 2002 Disability Questionnaire Application completed by Dr. Soppet, same

revealing the following limitations: the ability to walk only 2 blocks, stand for

30 minutes and sit for 1 hour; the ability to lift 5 pounds; the ability to climb

4 steps; the ability to bend just a “little;” the ability to sleep for 5 to 6 hours;

and the ability to drive for 30 minutes. (Tr. 198) Moreover, the questionnaire

reveals back pain of 10 on a scale of 1 to 10, leg pain of 7 on a scale of 1 to 10,

and foot pain of 8 on a scale of 1 to 10. (Tr. 199) 

It is true that the ALJ never directly mentioned this Disability

Questionnaire but the failure to do so and to state the weight he was according

same is clear harmless error since, as recognized by the defendant in her

proposed report and recommendation, this document reflects not Dr. Soppet’s

objective opinion regarding White’s ability to lift, stand, walk and sit, etc. but,

instead, reflects plaintiff’s own subjective opinion about his ability to perform

the foregoing physical activities as well as his opinion of the intensity of his

pain. (Tr. 198-199) It is clear to the Court that Dr. Soppet and personnel in his

office simply assisted plaintiff in completing the questionnaire with plaintiff’s

own observations regarding his physical abilities and pain. (Tr. 198-200)

Because the questionnaire does not reflect any of Dr. Soppet’s personal

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 10 of 20
11

objective findings or opinions regarding plaintiff’s pain and ability to perform

physical activities there was no reason for the ALJ to analyze this document

in the context of the Lewis v. Callahan standard set forth above. The ALJ

committed no error in this regard.

B. Effects of Plaintiff’s Morbid Obesity on his Ability to Work.

Plaintiff contends that the ALJ failed to properly evaluate his morbid obesity

as required by SSR 02-01p. Specifically, it is plaintiff’s argument that the ALJ

considered only the physical limitations caused by his obesity and failed to

consider the mental limitations, such as decreased concentration, caused by

this impairment. The undersigned finds, however, that the record reflects that

the ALJ properly evaluated plaintiff’s morbid obesity as required by SSR 02-

01p. 

In his opinion, the ALJ specifically noted his obligation to evaluate

plaintiff’s obesity under SSR 02-01p and performed such analysis in the

following manner:

On September 12, 2002, SSA published SSR 02-01p. . . . I have

considered the claimant’s obesity, standing along (sic), and in

combination with other impairments. I find that the medical

records show that the claimant’s weight was noted to be from

350 to 400 pounds when he was evaluated by Dr. Golomb in

August of 2002. However, Dr. Golomb reported that the

claimant was reasonable (sic) agile for his size, his back flexion

was 100 degrees, right and left straight-leg raising was 90

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 11 of 20
12

degrees, he had full range of motion of his head, neck[,]

shoulder joints and all other peripheral joints including his knee

joints. He walked with a normal gait and although the claimant

used a cane, Dr. Golomb reported that he walked well without

his cane. The claimant had no motor or sensory abnormalities,

and could walk on his heels and toes and squat fully and arise

without any support. There was no motor loss. X-rays of the

back showed the disc spaces were well-preserved and there was

normal alignment and configuration of the vertebral bodies. Dr.

Golomb opined the claimant could do work-activities with only

very minor limitations due to his size. I find no physician has

limited the claimant from work activity. I find that the

claimant’s obesity, either by itself, or in combination with any

other physical impairment, would not be so severe that all work

activity is eliminated.

(Tr. 22) While it is true that the foregoing analysis does not reflect

consideration by the ALJ of any possible mental limitations caused by

plaintiff’s obesity and plaintiff’s counsel points to the claimant’s testimony

regarding decreased concentration (Tr. 287), the problem with this testimony

is that it does not specifically link the decrease in ability to concentrate with

the obesity, as opposed to another of plaintiff’s impairments. Moreover, in

posing his hypothetical question to the vocational expert the ALJ specifically

called the VE’s attention to Exhibit 8-F (Tr. 306), which recognized that

plaintiff would be moderately limited in his ability to maintain attention and

concentration for extended periods (Tr. 232). Accordingly, within the context

of the record and case as a whole, the ALJ took into consideration a limitation

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 12 of 20
13

on plaintiff’s ability to concentrate and thereby properly considered all mental

limitations caused by plaintiff’s impairments. His failure to specifically

address plaintiff’s decreased ability to focus within the context of his

discussion of SSR 02-01p was not error both because such limitation was

included as part of his hypothetical to the vocational expert and because

plaintiff never linked his concentration problem to his obesity as opposed to

one of his other impairments.

C. The ALJ’s Assessment of Plaintiff’s Credibility. Plaintiff

contends that the ALJ merely recited the appropriate rulings, regulations and

case law relevant to this circuit’s three-part pain standard but “failed to analyze

and apply those standards to Mr. White’s case[,]” specifically, with respect to

plaintiff’s subjective complaints of drowsiness, fatigue and shortness of breath.

(Doc. 12, at 10) 

The Eleventh Circuit has established a three-part pain standard that

applies when a claimant attempts to establish his 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

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 13 of 20
14

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 h[is]

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 findings in deciding the issue of disability.” Foote v. Chater,

67 F.3d 1553, 1562 (11th Cir. 1995).

The ALJ performed the following evaluation of plaintiff’s complaints

of severe disabling pain and other symptoms: “I find that the claimant’s

testimony of disabling pain and functional restrictions is disproportionate to

the objective medical evidence. The record does not contain objective signs

and findings that could reasonably be expected to produce the degree and

intensity of pain and limitations alleged. There are no diagnostic studies to

show abnormalities that could be expected to produce such severe symptoms.

The physical findings in the record do not establish the existence of

neurological deficits, significant weight loss, muscle atrophy, or other

observable signs often indicative of protracted pain of the intensity, frequency,

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 14 of 20
5 To the extent it is necessary, the undersigned finds that the ALJ’s explicit

determination that plaintiff does not suffer from severe disabling pain is supported by substantial

evidence. (See Tr. 168-241)

15

and severity alleged.” (Tr. 23) 

Admittedly, the ALJ conducted but a short analysis of plaintiff’s

subjective complaints and concentrated almost exclusively on White’s

allegations of severe disabling pain.5

 However, inasmuch as the ALJ did

include within his analysis reference to other restrictions testified to by White,

the undersigned finds such analysis (rejecting those other limitations)

sufficient consideration of plaintiff’s subjective complaints of drowsiness,

fatigue and shortness of breath since the evidence of record supports the ALJ’s

rejection of such restrictions. The undersigned has copiously reviewed the

administrative record in this case and finds no complaints by White to his

primary physician, Dr. Soppet, about drowsiness, fatigue or shortness of breath

(Tr. 168-197 & 237-241) and, consequently, no concerns expressed by the

treating physician about these alleged limitations, see Swindle v. Sullivan, 914

F.2d 222, 226 (11th Cir. 1990) (where no concerns about side effects of

medication are noted by treating or examining physicians, an ALJ’s

determination that side effects from medication did not present a significant

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 15 of 20
6 In fact, the only examining medical doctor who documented plaintiff’s complaints

about any of these alleged limitations, Dr. Philip Golomb (Tr. 206 (“He was asked to describe

his present problems and he replied, ‘This is the third time I’ve applied for disability. . . . I used

to drive long distances with a van, but I can’t drive long distances any more because the

medicines I take make me drowsy.’”)), ultimately opined, following his physical examination of

the claimant, his belief that “Mr. White could do work-related activities with very only minor

limitations, and those would be due to his very large size.” (Tr. 208) 

16

problem is supported by substantial evidence).6 Accordingly, the undersigned

finds the ALJ’s implicit determination that these alleged symptoms

(drowsiness, fatigue, and shortness of breath) did not present significant

problems supported by substantial evidence.

D. ALJ Erred in Failing to Resolve a Conflict Between the

Vocational Expert’s Testimony Concerning Classification of Plaintiff’s

Past Work and the Classification of the Jobs as Described in the

Dictionary of Occupational Titles. The VE in this case classified plaintiff’s

past work as a van driver as medium and unskilled and his past work as a

delivery truck helper as medium and unskilled (Tr. 305); he further testified

that his testimony in this regard was consistent with the DOT (Tr. 306). It is

plaintiff’s contention that the VE’s testimony regarding his past work conflicts

with the DOT inasmuch as that source describes van driver as “very heavy

work” and delivery truck helper as “heavy” work. (Doc. 12, at 11) Plaintiff

contends, further, that pursuant to SSR 00-4p the ALJ was required to resolve

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 16 of 20
17

this conflict and his failure to do so amounts to reversible error.

In response to plaintiff’s argument in this regard, the defendant has

cited this Court to two other sections of the DOT, namely #913.663-018,

which classifies the work of van driver as requiring medium exertion (Doc. 17,

Attachment, at 1 (“Drives minibus, van, or lightweight truck to transport

clients, trainees, or company personnel: Drives vehicle from individual or

central loading area to social services or rehabilitation center, training location,

job site, or other destination according to assigned schedule. May assist

disabled passengers into and out of vehicle. . . .”) (emphasis omitted)), and

#292.667-010, which classifies driver helper on a sales route as requiring a

medium amount of exertion (id., at 2 (“Aids DRIVER, SALES ROUTE (retail

trade; wholesale tr.) in providing sales, services, or deliveries of goods to

customers over an established route, performing any combination of the

following: Loads and unloads truck at beginning and end of trip. Carries

merchandise from truck to customer’s home or store. Collects c.o.d. payments

or obtains receipts. May drive to relieve driver. May solicit new business.”)

(emphasis omitted)). The DOT descriptions/classifications cited by the

defendant are more consistent with plaintiff’s description of his past work (Tr.

98 (van driver job required 4 hours of sitting but no other exertional

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 17 of 20
7 DOT # 905.663-018 is the classification for a van driver who drives a furniture

van and loads and unloads the furniture slated for delivery. It comes as no surprise that such

work is classified as heavy but it is also no surprise that such work is totally inconsistent with the

work described by White. Moreover, DOT # 905.687-010 is the classification for a truck driver

helper for a “heavy” truck driver in any industry and there is simply nothing about plaintiff’s

past work as a truck driver helper delivering milk to stores which suggests that such work

required heavy exertion.

18

requirements); 100-101 (truck driver helper work required plaintiff to lift and

carry milk weighing up to 25 pounds to and from truck into stores, walking

and standing for 4 hours, and sitting for 2 hours); 288 (van driver work

required him to drive from town to town); 289 (truck driver helper work

required plaintiff to unload crates of milk from truck, place them on a twowheeler and deliver them inside stores), than are the DOT classifications cited

by plaintiff.7

 Accordingly, the undersigned finds no conflict between the VE’s

testimony and the DOT classifications applicable in this case which needed to

be resolved by the ALJ. The ALJ committed no error in this regard.

The evidence of record in this case completely supports the hypothetical

question posed by the ALJ to the VE (compare Tr. 168-262 with Tr. 306) and

based upon that hypothetical the VE testified that plaintiff could perform his

past relevant work as a van/coach driver and delivery truck helper (Tr. 306-

308). The ALJ appropriately relied upon the VE’s testimony, along with the

other evidence of record, to find that White had not satisfied his burden of

Case 2:05-cv-00243-BH-C Document 20 Filed 01/09/06 Page 18 of 20
19

proving that he is unable to perform his previous work. Jones, supra.

Therefore, the Commissioner’s decision denying claimant benefits should be

affirmed.

CONCLUSION

The Magistrate Judge recommends that the Commissioner's decision

denying plaintiff benefits be affirmed.

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 6th day of January, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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20

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within ten days of the date of service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). The procedure for challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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