1 The pro se plaintiff was extended the opportunity to file a brief (Doc. 11);

however, he failed to respond to the undersigned’s order of October 14, 2009 (see Docket Sheet). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

IRVING C. BOYD, :

Plaintiff, :

vs. : CA 09-0322-WS-C

MICHAEL J. ASTRUE, :

Commissioner of Social Security, 

:

Defendant.

REPORT AND RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. § 1383(c)(3), seeking

judicial review of a final decision of the Commissioner of Social Security

denying his claim for supplemental security income benefits. This action has

been referred to the Magistrate Judge for issuance of a report and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration

of the administrative record and the Commissioner’s brief,1

 it is recommended

that the decision to deny benefits be affirmed.

Plaintiff alleges disability due to status-post fractures of the left knee,

right ankle, and two levels of the lumbar spine (i.e., L4 and L5). The

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 1 of 8
2

Administrative Law Judge (ALJ) made the following relevant findings:

2. The claimant has the following severe impairments:

status post fracture of the left knee and right ankle (20 CFR

916.920(c)). 

...

3. The claimant does not have an impairment or

combination of impairments that meets or medically equals

one of the listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform the full range of light work as

defined in 20 CFR 416.967(b). However, he would be limited

in using his lower extremities for pushing and/or pulling of

foot controls. He could occasionally climb ramp[s]/stairs,

climb ladder[s]/rope/scaffolds, balance, stoop, kneel, crouch

and crawl.

...

5. The claimant is unable to perform any past relevant

work (20 CFR 416.965).

The claimant has past relevant work as a landscape helper

(unskilled, heavy) and material handler (unskilled, heavy). The

vocational expert testified at the hearing that the claimant would

only be able to perform light work activity. Accordingly, the

claimant is unable to perform past relevant work.

6. The claimant was born on November 30, 1958 and

was 48 years old, which is defined as a younger individual

age 18-49, on the date the application was filed (20 CFR

416.963).

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 2 of 8
3

7. The claimant has a limited education and is able to

communicate in English (20 CFR 416.964). 

8. Transferability of job skills is not an issue in this case

because the claimant’s past relevant work is unskilled (20

CFR 416.968).

9. Considering the claimant’s age, education, work

experience, and residual functional capacity, there are jobs

that exist in significant numbers in the national economy

that the claimant can perform (20 CFR 416.960(c) and

416.966).

In determining whether a successful adjustment to other work

can be made, the undersigned must consider the claimant’s

residual functional capacity, age, education, and work

experience in conjunction with the Medical-Vocational

Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the

claimant can perform all or substantially all of the exertional

demands at a given level of exertion, the medical-vocational

rules direct a conclusion of either “disabled” or “not disabled”

depending upon the claimant’s specific vocational profile (SSR

83-11). When the claimant cannot perform substantially all of

the exertional demands of work at a given level of exertion

and/or has nonexertional limitations, the medical-vocational

rules are used as a framework for decisionmaking unless there

is a rule that directs a conclusion of “disabled” without

considering the additional exertional and/or nonexertional

limitations (SSRs 83-12 and 83-14). If the claimant has solely

nonexertional limitations, section 204.00 in the MedicalVocational Guidelines provides a framework for

decisionmaking (SSR 85-15). 

Based on a residual functional capacity for the full range of light

work, considering the claimant’s age, education, and work

experience, a finding of “not disabled” is directed by MedicalVocational Rule 202.17.

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 3 of 8
4

10. The claimant has not been under a disability, as

defined in the Social Security Act, since December 8, 2006,

the date the application was filed (20 CFR 416.920(g)).

(Tr. 16, 18 & 21-22) The Appeals Council affirmed the ALJ’s decision (Tr.

1-3) and thus, the hearing decision became the final decision of the

Commissioner of Social Security.

DISCUSSION

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, as here, 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 Magistrate Judge is to determine whether the

Commissioner’s decision to deny claimant benefits, on the basis that Boyd can

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 4 of 8
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).

5

perform other work existing in significant numbers in the national economy,

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

It is clear that the burden is on the Commissioner at the fifth step of the

sequential evaluation process to establish capacity to perform other work and

thereby to establish the claimant’s residual functional capacity. See Foote v.

Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The ALJ’s determination that

plaintiff is capable of performing the exertional requirements of a limited

range of light work (see Tr. 18) is supported by the April 25, 2007 physical

residual functional capacity assessment completed by non-examining,

reviewing physician Dr. Francis W. Sullivan (Tr. 323-330). Inasmuch as this

assessment is supported by the remaining evidence of record (see Tr. 132-321

& 335-349), the ALJ’s reliance upon this assessment to establish plaintiff’s

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 5 of 8
3 The undersigned finds the ALJ’s reliance upon grid rule 202.17 for a

determination of non-disability (see Tr. 22) mere harmless error in light of the vocational

expert’s testimony and the clear evidence of record that a limited range of light work exists in

substantial numbers in the national economy that plaintiff is capable of performing.

6

residual functional capacity does not constitute reversible error. At the

administrative hearing, a vocational expert (“VE”) testified that a claimant

with the residual functional capacity reflected in the form completed by Dr.

Sullivan could perform light, unskilled work and gave as representative

examples, work as a hand packager, wire harness assembler, and electronics

assembler. (Tr. 54-55) The VE’s testimony provides substantial support for

the ALJ’s fifth-step determination that other jobs exist in significant numbers

in the national economy that the claimant is capable of performing. See Allen

v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) (VE’s testimony that 174 small

appliance positions existed in the area where claimant resided was substantial

evidence supporting the Secretary’s fifth-step denial of benefits).3

Accordingly, the ALJ’s decision denying Boyd benefits is due to be affirmed.

CONCLUSION

The Magistrate Judge recommends that the decision of the

Commissioner of Social Security denying plaintiff supplemental security

income benefits be affirmed. 

The instructions which follow the undersigned’s signature contain

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 6 of 8
7

important information regarding objections to the report and recommendation

of the Magistrate Judge.

DONE this the 4th day of January, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 7 of 8
4 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

8

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 fourteen (14) 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 days4

 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.

Case 2:09-cv-00322-WS-C Document 13 Filed 01/04/10 Page 8 of 8