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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KELLEY E. WEIR, JR., :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15—0052-CG-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, 13). The parties filed written consent and this 

action has been referred to the undersigned Magistrate Judge to 

conduct all proceedings and order judgment in accordance with 28 

U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 21). Oral 

argument was waived in this action (Doc. 20). After considering 

the administrative record, the memoranda of the parties, and 

oral argument, it is ORDERED that the decision of the 

Commissioner be REVERSED and that this action be REMANDED for 

further 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, Weir was twentythree years old, had completed a high school education (Tr. 46), 

and had no previous work experience (see Tr. 32). Plaintiff 

alleges disability due to obesity, lumbar spondylosis with 

chronic low back pain, polyarthralgias, anxiety, sleep apnea, 

depression, alcohol independence, and restrictive pulmonary 

disease (Doc. 13 Fact Sheet).

Weir applied for SSI on December 6, 2011, asserting 

disability as of that date (Tr. 26, 138-46). An Administrative 

Law Judge (ALJ) denied benefits, determining that there were 

specific sedentary jobs that Plaintiff could perform (Tr. 26-

34). Weir requested review of the hearing decision (Tr. 22), 

but the Appeals Council denied it (Tr. 1-6).

Plaintiff claims that the opinion of the ALJ is not 

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supported by substantial evidence. Specifically, Weir alleges 

that: (1) The ALJ’s finding of Plaintiff’s residual functional 

capacity (hereinafter RFC) is incorrect; (2) the ALJ did not 

properly consider the opinions and conclusions of his 

physicians; and (3) the ALJ improperly discounted Plaintiff’s 

testimony (Doc. 13). Defendant has responded to—and denies—

these claims (Doc. 16). The relevant evidence of record 

follows.1

On February 15, 2011, Psychologist John W. Davis examined 

Weir who had normal conversation but showed some anxiety and 

depression; his emotional responses were appropriate to thought, 

content, and situation (Tr. 270-74). Memory was good in the 

present and recent and remote past; there were no loose 

associations or confusion. Judgment and insight were good; 

intelligence was thought to be average. The Psychologist noted 

“depressive symptoms such as appetitive disturbance (grossly 

overweight), sleep disorder, psychomotor retardation, decreased 

energy, and feelings of guilt or worthlessness;” his diagnosis 

was Depression, NOS (Tr. 273). Davis indicated that Weir’s 

“ability to understand and remember simple instructions, carry 

out simple instructions, and make judgments on simple workrelated decisions [was] mildly impaired” (Tr. 274). The 

																																																							 1The Court will not review medical evidence that pre-dates Weir’s 

asserted disability date, unless required to address the claims 

brought herein.

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Psychologist further found that his ability to understand, 

remember, carry out, and make judgments on complex work-related 

decisions was moderately impaired; he was also moderately 

impaired in his ability to interact appropriately with the 

public, supervisors, and co-workers and in responding 

appropriately to changes in routine settings (Tr. 274).

On October 18, 2011, Dr. Christopher H. Dyas noted Weir’s 

weight of 489 pounds, standing at six foot, one inch, and a Body 

Mass Index of 64 for which he recommended gastric bypass surgery 

(Tr. 276-78, 280-83). 

On February 2, 2012, Dr. Jonathan T. Miller, Internist,

examined Weir for bilateral foot and joint pain for which he was 

taking an NSAID (Tr. 290-91). He had normal range of motion 

(hereinafter ROM) in his neck and all major joints with no 

tenderness; he had normal motor and sensory function. Breathing 

was normal with no distress. He weighed in at 490 pounds and 

stood six foot, four inches tall and was encouraged to eat 

nutritiously and exercise. A week later, examination results 

were the same; Plaintiff was taught stretching exercises for his 

foot pain and prescribed Ultracet2 as needed (Tr. 288-89). 

Weir’s morbid obesity increased his joint pain and hypertension.

On March 15, 2012, Psychologist Lucile T. Williams examined 

																																																							 2Ultracet is made up of acetaminophen and tramadol and is used 

for the short-term (5 days or less) management of pain. See

http://health.yahoo.com/drug/d04766A1#d04766a1-whatis

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Weir and found his affect appropriate to content of thought and 

conversation; he did not appear anxious, but seemed mildly 

depressed (Tr. 297-98). Plaintiff was oriented in four spheres;

immediate, recent, and remote memory were all good. Thought 

processes were grossly intact with no loose associations, 

tangential, or circumstantial thinking; Weir was not confused. 

Insight and self-understanding were fair while judgment was 

poor; intelligence was thought to be average. The Psychologist 

noted Plaintiff’s admission of drinking a lot one night each 

weekend over a four-year period; she diagnosed Depressive 

Disorder NOS.

On March 1, 2012, Dr. Miller found no changes but noted 

that Weir could not get insurance approval for the gastric 

bypass (Tr. 299-300). On April 25, Plaintiff complained of 

frequent headaches and fatigue over the prior two weeks for 

which he was given Fioricet;3 the exam was otherwise normal (Tr. 

301-02). On June 1, though ROM in all major joints was good 

with no tenderness noted, Lortab 7.54 was prescribed for back and 

leg pain due to severe morbid obesity (Tr. 304-05). Weight loss 

and improved diet compliance were reemphasized; Miller limited 

standing and walking. That same date, the Doctor completed a 

																																																							 3Fioricet contains a barbiturate and relaxes muscle contractions 

involved in tension headaches. http://www.drugs.com/fioricet.html

4Lortab 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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pain form indicating that Weir experienced pain frequently that 

would distract him from adequately performing work and that pain 

medicine would cause side effects, imposing mild limitations 

(Tr. 303).

Following an examination on June 12, 2012, Dr. Charles B. 

Rodning, Professor at the University of South Alabama Department 

of Surgery, wrote a letter to Blue Cross Blue Shield of Alabama 

indicating that Plaintiff was in serious need of gastric bypass 

surgery (Tr. 307, 317). “The ravages of his [super morbid 

obesity] will become evermore severe and debilitating, if 

operative intervention is not performed. We think it would be 

unconscionable to deny operative intervention” (id. at 307). On 

July 17, Rodning re-evaluated Weir, with multiple somatic 

complaints, and prescribed requested narcotics and anti-anxiety 

medications (Tr. 306).

On November 7, 2012, Dr. Miller saw Plaintiff for recurrent 

back and knee pain; he was stable with back tenderness (Tr. 321-

22). Dietary compliance and restrictions were discussed, 

reviewed, and reemphasized.

On August 6, November 26, December 27, 2012, and January 3, 

2013, Dr. Rodning wrote prescriptions for Lortab; on October 31, 

2012, he prescribed Xanax;5 on November 13 and 20 and December 4 

																																																							 5Xanax is a class four narcotic used for the management of 

anxiety disorders. Physician's Desk Reference 2294 (52nd ed. 1998).

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and 18, 2012, Rodning prescribed both medications (Tr. 323-31).

On January 10, 2013, Dr. John Couch performed a lumbar 

paravertebral facet joint injection with fluoroscopy, finding no 

signs of lumbar spine infection; there was low back pain on 

extension and flexion (Tr. 332-34, 341-43). Polyarthralgias 

were noted.

On January 7, 2013, Dr. Miller treated Weir for sinus and 

bronchitis symptoms; he was no in respiratory distress (Tr. 335-

36). Plaintiff had full ROM and no tenderness in his back.

On March 5, 2013, Dr. Thomas Dempsey, Orthopaedic, examined 

Weir who complained of chronic back pain; he had no radicular 

symptoms (Tr. 339-40). Plaintiff weighed 520 pounds with a BMI 

of 65. Weir walked with a waddle; he had 50% ROM in the lumbar 

spine. Plaintiff claimed six-to-eight on a ten-point pain 

scale; back x-rays revealed no abnormalities. Dempsey 

prescribed Ultram6 and Naprosyn7.

On March 11, 2013, Dr. Miller completed a physical 

capacities evaluation (hereinafter PCE) in which he indicated 

that Weir could sit for four hours at a time and total in a 

workday; though he could stand/walk for less than an hour at a 

																																																							 6Ultram is an analgesic “indicated for the management of moderate 

to moderately severe pain.” Physician's Desk Reference 2218 (54th ed. 

2000).

7Naprosyn, or Naproxyn, “is a nonsteroidal anti-inflammatory drug 

with analgesic and antipyretic properties” used for the relief of mild 

to moderate pain. Physician's Desk Reference 2458 (52nd ed. 1998).

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time, he could do that for four hours total (Tr. 337). 

Plaintiff could lift fifty pounds frequently and one hundred 

pounds occasionally; he could carry twenty-five pounds 

frequently and one hundred pounds occasionally. He had no 

problems with simple grasping, pushing and pulling of arm 

controls, or fine manipulation; Miller did not state whether or 

not Plaintiff could use foot controls. He could frequently 

crawl and reach, occasionally bend and squat, but never climb; 

he was mildly limited in activities at unprotected heights and 

being around moving machinery. On a form completed the same 

day, Dr. Miller stated that Weir’s pain was the same as reported 

nine months earlier, but his medication side effects were now 

expected to be severe and limit his effectiveness (Tr. 338; cf.

Tr. 303).

At the evidentiary hearing, Plaintiff testified that he was 

twenty-three years old, lived with his mother and grandparents, 

and weighed five hundred, twenty pounds (Tr. 43-46; see 

generally Tr. 43-58). Weir finished high school and had taken a 

semester of computer drafting and design in college, but quit 

because he could not sit through the classes. He worked one day 

at Domino’s but could not stand on his feet all day so he quit. 

He took naps three or four times a day because his medications 

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made him drowsy; he took Hydrocodone,8 Lortab, Klonopin,9 and 

Xanax. Dr. Miller is his primary physician. Plaintiff did not 

have the willpower to diet and it hurt too much to exercise; he 

could walk fifteen, stand twenty, and sit thirty minutes. Sleep 

and medication were the only things that relieved his pain; on a

ten-point scale, his pain rated eight without medicine and six 

with it. Weir experienced sharp pain all over but specifically 

mentioned his back, knees, and feet. Plaintiff could not 

concentrate. He took the garbage out and folded clothes every 

now and then; he made his bed every once in a blue moon but 

never did his laundry. Generally, Weir took medications and 

slept or watched TV; he did not drive because it scared him. 

When he turned twenty-one, he would drink one or two weekend 

nights a month so he could have friends to hang out with, but he 

did not drink a lot presently. He took medication for 

hypertension, but it was not under control which caused

headaches three or four times a week. He took anti-inflammatory 

medicines because his hands swelled and shook a lot.

This concludes the relevant evidence of record.10 

																																																							 8Hydrocodone is a narcotic analgesic used “for the relief of 

moderate to moderately severe pain.” Physician's Desk Reference 2926-

27 (52nd ed. 1998). 

9Klonopin is a class four narcotic used for the treatment of 

panic disorder. Physician's Desk Reference 2732-33 (62nd ed. 2008).		

10The Court notes that additional evidence from Drs. Miller and 

Couch was submitted to the Appeals Council, but was not considered by 

the ALJ (see Tr. 344-55; cf. Tr. 5, 37-38). As Plaintiff has raised 

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In bringing this action, Weir’s first two claims are that 

the ALJ’s RFC determination is incorrect because the ALJ did not 

properly consider the opinions and conclusions of two examining 

sources (Doc, 13, pp. 7-15). Plaintiff specifically references 

his treating physician, Dr. Miller, and Psychologist Davis.

The Court notes that the ALJ is responsible for determining 

a claimant’s RFC. 20 C.F.R. § 404.1546 (2015). 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. § 404.1545(a)(3). 

It should also 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);11 see also 20 C.F.R. § 404.1527 (2015).

In her decision, the ALJ reviewed the medical evidence and 

gave “great weight to Dr. Miller’s functional restrictions” as 

they were consistent with his treatment notes and Weir’s 

																																																																																																																																																																																		 no claim that the Appeals Council failed to properly consider it (Doc. 

13), the Court need not consider the evidence herein.

					 11The 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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testimony (Tr. 31). Psychologist Davis’s assessment was given 

greater weight, over that of Dr. Sherman,12 because the latter 

had performed a physical examination and concluded that Weir 

could not work for mental reasons, while Davis, a mental 

specialist, reached no such conclusion (Tr. 31). The ALJ found 

that Weir had

the residual functional capacity to perform 

medium work as defined in 20 C.F.R. 

416.967(c)13 except the claimant can stand 

and walk no more than 30 minutes at one 

time, and no more than four hours in an 

eight hour day. Sitting is unrestricted 

with the usual breaks. The claimant can 

occasionally operate foot controls, climb 

ramps, stoop, and crouch. He should never 

climb ladders, scaffolds, ropes, and stairs, 

kneel, crawl, work at unprotected heights or 

with dangerous machinery, work in 

temperature extremes, near humidity and 

wetness, or exposed to concentrated 

environmental pollutants such as dust, 

chemicals, or fumes. The claimant must have 

minimal changes in work setting and 

routines. He is able to understand to carry 

out simple one or two-step instructions 

involving a few concrete variables in 

standardized situations. He should avoid 

tasks involving a variety of instructions or 

tasks.

(Tr. 29-30). 

																																																							 12Dr. Alan J. Sherman’s report was not summarized herein as it was 

unnecessary for the claims raised (Tr. 248-54).

13“Medium work involves lifting no more than 50 pounds at a time 

with frequent lifting or carrying of objects weighing up to 25 pounds. 

If someone can do medium work, we determine that he or she can also do 

sedentary and light work.” 20 C.F.R. § 404.1567(c) (2015) (footnote 

added).

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A comparison of this RFC determination with Dr. Miller’s 

PCE form indicates two differences bothering Plaintiff: (1) The 

Doctor found Weir able to sit for four hours a day while the ALJ 

found “sitting unrestricted with the usual breaks;” and (2) the 

ALJ did not include Miller’s reaching “only frequently” 

restriction in the RFC. 

Plaintiff’s assertions are correct. The Court finds the 

ALJ’s sitting language incorrectly characterized the Doctor’s 

conclusion. The ALJ attributed a half-day more of sitting to 

Weir’s RFC than Dr. Miller found him capable. The Court further 

finds that the ALJ also incorrectly suggested, by omission, that 

Plaintiff could continuously reach.14

Weir also points to differences in Psychologist Davis’s 

conclusions and those of the ALJ as incorporated into her RFC 

determination. Specifically, while Davis found that Plaintiff’s 

ability to interact with the public, supervisors and co-workers 

was moderately impaired, the ALJ made no finding in this regard.

The ALJ then specifically credited Miller’s functional 

restrictions report as the basis for the RFC determination, even 

though she got two of the elements wrong. The ALJ also gave 

“greater weight”15 to Davis’s conclusions, but failed to point 

																																																							 14Performing an activity frequently means doing it only one-third 

to two-thirds of a day. Social Security Ruling 83-10. This is much 

different than doing it continuously.

15The Court acknowledges that giving “greater weight” to one 

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out what she found deficient in them. The ALJ used Miller’s and 

Davis’s conclusions, minus specific limitations, in her 

hypothetical questions to the Vocational Expert (hereinafter VE) 

and relied on that testimony to determine that there were 

specific jobs that Weir could perform (Tr. 33, 59-61). That 

determination is not supported by substantial evidence in light 

of its failure to include the limitations found by Miller and 

Davis and not rejected by the ALJ. 

Plaintiff also claims that the ALJ improperly discounted 

his testimony regarding his pain and limitations (Doc. 13, pp. 

15-19). The thrust of this argument, though, is that the ALJ 

ignored Dr. Miller’s two pain evaluations.

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, 

																																																																																																																																																																																		 examiner’s conclusions over the “little weight” given to those of 

another examiner provides little guidance for the reviewer to 

understand how much weight is being given to whom. Nevertheless, 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 ALJ has not done 

this here.

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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 

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) (2014).

In her determination, the ALJ found that Weir’s impairments 

could cause some of his symptoms, but that his “statements 

concerning the intensity, persistence and limiting effects of 

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these symptoms are not entirely credible” (Tr. 32). She gave 

three reasons for this determination: (1) Weir’s hearing 

testimony was not fully credible; (2) his activities of daily 

living were inconsistent with a finding of disability; and (3) 

the severity of his pain had no medical support in the record 

(Tr. 32). It is the third reason that gives the Court pause for 

consideration.

Dr. Miller provided two different pain forms indicating 

that Plaintiff’s pain would distract him from adequately 

performing work (Tr. 303, 338). In the more recent form, the 

Doctor indicated that Weir’s medication regimen would cause 

severe side effects, limiting his effectiveness (Tr. 338). The 

ALJ did not acknowledge either of these forms in finding 

Plaintiff’s allegations of pain and limitation non-credible. 

This determination was made in spite of finding that Dr. 

Miller’s PCE was “consistent with [his] treatment notes, and the 

claimant’s testimony of his back and knee pain” (Tr. 31). The 

ALJ’s determination of Plaintiff’s pain is not supported by 

substantial evidence because the ALJ chose to ignore evidence in 

the record.

Weir has brought three different claims in this action. 

All three have merit because the ALJ ignored evidence in the 

record she purportedly credited in finding against Plaintiff. 

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The ALJ’s failure means that her decision is not supported by 

substantial evidence.

The Court must, however, strike a cautionary note as it 

does not find Weir disabled. Dr. Miller’s PCE form suggests 

that there might be jobs that Weir can perform. However, the 

ALJ’s decision fails to do what is necessary for the Court to 

reach that conclusion.

Therefore, it is ORDERED that the action be REVERSED and be 

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 Plaintiff’s pain, limitations, and ability 

to work. Judgment will be entered by separate Order. 

DONE this 16th day of November, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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