IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

GLENDA TOLAR, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 09-0353-M 

: 

MICHAEL J. ASTRUE, : 

Commissioner of : 

Social Security, : 

: 

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 which denied

a claim for Supplemental Security Income (hereinafter SSI) (Docs.

1, 11). The parties filed written consent and this action has

been referred to the undersigned Magistrate Judge to conduct all

proceedings and order the entry of judgment in accordance with 28

U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 19). Oral argument

was waived in this action (Doc. 18). Upon consideration of the

administrative record and the memoranda of the parties, it is

ORDERED that the decision of the Commissioner be AFFIRMED and

that this action be DISMISSED. 

This Court is not free to reweigh the evidence or substitute

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

1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial eviCase 2:09-cv-00353-M-M Document 20 Filed 01/05/10 Page 1 of 10
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dence 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 administrative hearing, Plaintiff was

forty-four years old, had completed an eleventh-grade special

education curriculum (Tr. 29), and had no relevant previous work

experience (see Tr. 24). In claiming benefits, Tolar alleges

disability due to mild mental retardation, back and leg pain,

hypertension, bilateral carpal tunnel syndrome, diabetes,

obesity, and sleep apnea (Doc. 12).

The Plaintiff filed an application for SSI on June 8, 2006

(Tr. 78-80). Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that if Tolar would

stop abusing alcohol, she would be able to perform a limited

range of medium level work in the national economy (Tr. 12-25). 

Plaintiff requested review of the hearing decision (Tr. 5-6) by

the Appeals Council, but it was denied (Tr. 1-3).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Tolar alleges

that: (1) The ALJ failed to find that her obesity was a severe

impairment; (2) the ALJ improperly denied the opinion of an

examining psychologist; and (3) she is disabled under Listing

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12.05C (Doc. 11). Defendant has responded to—and denies—these

claims (Doc. 13).

Plaintiff first claims that the ALJ failed to find that her

obesity was a severe impairment. In SSR 02-1p, the Social

Security Administration issued a ruling entitled Evaluation of

Obesity which examines the analysis for determining the

following: whether a person is obese (based on a formula known

as the Body Mass Index); whether the obesity is a medically

determinable impairment; and whether the obesity is severe. The

latter determination is made by determining whether the obesity

“significantly limits an individual’s physical or mental ability

to do basic work activities.” SSR 02-1p.

The Court further notes that the Eleventh Circuit Court of

Appeals held that "[a] physician's recommendation to lose weight

does not necessarily constitute a prescribed course of treatment,

nor does a claimant's failure to accomplish the recommended

change constitute a refusal to undertake such treatment." McCall

v. Bowen, 846 F.2d 1317, 1319 (11th Cir. 1988) (citing Johnson v.

Secretary of Health and Human Services, 794 F.2d 1106, 1113 (6th

Cir. 1986) (noting that "it is impermissible . . . to presume

that obesity can be remedied.")). In McCall, the Appellate Court

further held that "the Secretary may deny SSI disability benefits

only when a claimant, without good reason, fails to follow a

prescribed course of treatment that could restore her ability to

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work." McCall, 846 F.2d at 1319 (citing 20 C.F.R. § 416.930);

see Patterson v. Bowen, 799 F.2d 1455, 1460 (11th Cir. 1986). 

In this action, the ALJ acknowledged that Tolar suffered

from obesity, but found that it was non-severe (Tr. 17). He

further noted that Plaintiff “is morbidly obese and Dr. Freij has

discussed with her ways to lose weight; however, the records

indicate that the claimant has not lost any weight and she

continues to gain weight” (Tr. 24). 

The Court has reviewed Dr. Walid Freij’s medical notes from

a two-month period of 2006 in which he indicates that he

discussed ways to lose weight with Tolar and advised her to lose

five pounds a month for the next six months (Tr. 215; see

generally Tr. 144-19). This is pretty much the extent of his

notes concerning her morbid obesity. 

The Court finds that to the extent the ALJ concluded that

Tolar’s obesity was not severe because she did not follow a

medical regimen to lose weight, he has not satisfied McCall;

however, it is, at most, harmless error. Rather, the Court finds

that the ALJ’s conclusion that her obesity is not severe is

correct because there has been no showing that her obesity

significantly limits her ability to work, either medially or

mentally, as required under SSR 02-1p. The Court has carefully

reviewed the argument made by Plaintiff and notes that no medical

evidence has been cited to show that her obesity impairs her

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ability to work, significantly or otherwise (Doc. 11, pp. 5-6). 

Tolar’s claim that the ALJ improperly found her obesity to be

non-severe is without merit.

Plaintiff next claims that the ALJ improperly denied the

opinion of an examining psychologist. More specifically, Tolar

references the opinion of John R. Goff (Doc. 11, pp. 2-5). 

Neuropsychologist Goff examined Plaintiff on March 5, 2008

(Tr. 234-40). Though it was, apparently, his first visit with

Tolar, Goff noted that he had medical records from four doctors

and one hospital to consider in his evaluation (Tr. 234). The

Psychologist administered several tests including the WRAT-IV and

the WAIS-III on which Plaintiff scored a verbal IQ score of 61, a

performance IQ score of 68, and a full scale IQ score of 61. 

Goff’s conclusions were that Tolar was functioning in the mildly

retarded range of intelligence, that she was functionally

illiterate, and that she had “a number of other adaptive skills

area deficits” (Tr. 238). The Psychologist completed a medical

source opinion form (Mental) in which he indicated that Plaintiff

had extreme limitations in her ability to remember and use her

judgment in detailed or complex work-related instructions; she

was also extremely constricted in her interests (Tr. 239-40). 

Goff further indicated that Tolar was markedly limited in her

ability to do the following: understand, carry out, or remember

simple, detailed, or complex instructions; respond appropriately

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to supervision; use judgment in simple one- or two-step workrelated decisions; and maintain attention, concentration, or pace

for periods of at least two hours (Tr. 239). 

The ALJ faithfully reported Goff’s findings and conclusions

(Tr. 20-21) before stating the following:

Regarding the opinion of Dr. Goff, it is

emphasized that the claimant underwent the

examination that formed the basis of the

opinion in question not in an attempt to seek

treatment for symptoms, but rather, through

attorney referral and in connection with an

effort to generate evidence for the current

appeal. Further, the doctor was presumably

paid for the report. Although such evidence

is certainly legitimate and deserves due

consideration, the context in which it was

produced cannot be entirely ignored.

(Tr. 22-23). 

The Court notes that the ALJ is required to "state

specifically the weight accorded to each item of evidence and why

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

735 (11th Cir. 1981). To the extent the ALJ’s intent, in the

above quoted passage, was to satisfy the requirement of Cowart,

he has failed; though he obviously does not place much value on

the Psychologist’s “bought” opinion, the ALJ did not “state

specifically the weight accorded” to it.

However, this is not the substance of Plaintiff’s claim. As

Tolar states: “Though the ALJ did not specifically state the

weight he gave Dr. Goff’s opinion, one must presume he gave it no

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1Plaintiff has claimed that she meets the requirements for this

Listing, a claim which will be taken up momentarily.

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weight, as he adopted Dr. McKeown’s opinion regarding her

limitations in his RFC assessment. (Tr. 23). This is reversible

error” (Doc. 11, p. 3). The thrust of Plaintiff’s argument is

that because McKeown did not examine her, his opinion cannot be

given much weight. Tolar is correct in asserting that the

opinion of a nonexamining physician “is entitled to little weight

and taken alone does not constitute substantial evidence to

support an administrative decision.” Swindle v. Sullivan, 914

F.2d 222, 226 n.3 (11th Cir. 1990) (citing Broughton v. Heckler,

776 F.2d 960, 962 (11th Cir. 1985).

Dr. Doug McKeown is a clinical psychologist (Tr. 76) who

testified at the evidentiary hearing as a Medical Expert

(hereinafter ME) (see Tr. 37, 39-40). McKeown stated that, as of

the hearing date, he had reviewed all of the medical evidence of

record and been present for Plaintiff’s testimony (Tr. 37). The

Psychologist went on to testify that the medical records

indicated that Tolar suffered from chronic alcoholism which may

have significantly contributed to her other medical problems (Tr.

39). McKeown credited Goff’s IQ testing as valid and concluded

that Plaintiff met half of the requirements for Listing 12.05C1

(Tr. 39-40). He went on to give his opinion that Plaintiff had

moderate limitations 

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2The Court notes that the ALJ misquoted the ME in finding that

McKeown had “moderate limitations in performing complex and varied

tasks;” McKeown actually found marked limitation (Tr. 22; cf. Tr. 40)

(emphasis added). However, the Court further notes that in the ALJ’s

questioning of the Vocational Expert (hereinafter VE), the VE

correctly noted the ME’s finding of a marked limitation and indicated

that Tolar would be able to perform specific jobs in the national

economy (Tr. 41-42). 

Though the ALJ misstated a portion of the ME’s testimony in

summarizing it in his opinion, the Court finds that it was only

harmless error.

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for activities of daily living and social

functioning, concentration, persistence and

pace and episodes of decompensation. I would

consider a marked impairment for an RFC

consideration for any complex and varied

tasks, and moderate impairments for following

work stresses and concentration, persistence

and pace, with mild to moderate impairments

on the other categories associated with

dealing with the public, supervisors and

coworkers. Simple tasks would be a mild

impairment as well.

(Tr. 40). The ALJ summarized the ME’s and gave substantial

weight to his conclusions (Tr. 22).2 According to the Social

Security regulations, an ALJ “may also ask for and consider

opinions from medical experts on the nature and severity of [a

claimant’s] impairment(s) and on whether [that] impairment(s)

equals the requirements of any impairment listed in appendix 1 to

this subpart.” 20 C.F.R. § 404.1527(f)(2)(iii) (2009). The

testimony of these medical experts is supposed to be evaluated

the same as the other evidence of record.

As the Court understands it, Plaintiff’s objection to the

ALJ’s reliance on the ME’s testimony is the fact that McKeown

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3Seemingly is the word to focus on in this statement. The bottom

line is that all conclusions must be supported by the evidence.

Frankly, there is not a great deal of evidence in this record. 

While Goff examined Tolar once and did administer some objective tests

which provided a valid assessment of her intellectual range, his

conclusions with regard to Plaintiff’s ability to work have no more

support in the balance of the record than those of McKeown who

examined only the medical evidence of record. In the end, the ALJ has

to make a decision between the two. This Court cannot say that the

ALJ’s choice was not supported by substantial evidence.

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never examined her. While the Court is sympathetic to Tolar’s

claim, the regulations allow for this seemingly3

 incongruous

result in which the opinion of a non-examining physician takes

priority over an examining physician’s conclusions. Plaintiff’s

claim is without merit.

Tolar’s final claim is that she is disabled under Listing

12.05C. The introductory notes to Section 12.05 state that

“[m]ental retardation refers to a significantly subaverage

general intellectual functioning with deficits in adaptive

behavior initially manifested during the development period;

i.e., the evidence demonstrates or supports onset of the

impairment before age 22.” 20 C.F.R. Part 404, Subpart P,

Appendix 1, Listing 12.05 (2009). Subsection C requires "[a]

valid verbal, performance, or full scale IQ of 60 through 70 and

a physical or other mental impairment imposing an additional and

significant work-related limitation of function." 20 C.F.R. Part

404, Subpart P, Appendix 1, Listing 12.05C (2009). 

The ALJ found that if Plaintiff “stopped the substance use,

the claimant would not have an impairment or combination of

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impairments that meets or medically equals any of the impairments

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1" (Tr. 23). 

The Court finds substantial support for this conclusion.

Tolar’s IQ scores satisfy the first requirement of 12.05C. 

However, there has been no showing of “a physical or other mental

impairment imposing an additional and significant work-related

limitation of function.” The only impairment suggested by

Plaintiff is her obesity (Doc. 11, p. 7). Earlier in the

Opinion, however, the Court specifically found “that no medical

evidence has been cited to show that her obesity impairs her

ability to work, significantly or otherwise” (p. 5). Tolar’s

argument otherwise gains no new momentum here. This claim is

without merit.

Plaintiff has raised three claims in bringing this action. 

All are without merit. Upon consideration of the entire record,

the Court finds "such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Perales, 402

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

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

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

will be entered by separate Order. 

DONE this 5th day of January, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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