IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES H. GOSSARD, :

Plaintiff, :

vs. : CA 14-0395-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security, 

:

Defendant.

MEMORANDUM OPINION AND ORDER

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. The parties 

have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 

U.S.C. § 636(c), for all proceedings in this Court. (Docs. 19 & 20 (“In accordance with

provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to 

have a United States magistrate judge conduct any and all proceedings in this case, . . . 

order the entry of a final judgment, and conduct all post-judgment proceedings.”).) 

Upon consideration of the administrative record, plaintiff’s brief, and the 

Commissioner’s brief, it is determined that the Commissioner’s decision denying

benefits should be reversed and remanded for further proceedings not inconsistent with 

this decision.

1

 

 1 Any appeal taken from this memorandum opinion and order and judgment shall 

be made to the Eleventh Circuit Court of Appeals. (See Docs. 19 & 20 (“An appeal from a 

judgment entered by a magistrate judge shall be taken directly to the United States court of 

(Continued)

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2

Plaintiff alleges disability due to diabetes mellitus, obesity, personality disorder, 

hypertension, hyperlipidemia, acute low back pain, bilateral degenerative arthritis of 

the hips, and degenerative disc disease of the lumbar spine. The Administrative Law 

Judge (ALJ) made the following relevant findings:

1. The claimant meets the insured status requirements of the Social 

Security Act through September 30, 2014.

2. The claimant has not engaged in substantial gainful activity since 

August 18, 2010, the alleged onset date (20 CFR 404.1571 et seq., and 

416.971 et seq.).

3. The claimant has the following severe impairment: diabetes 

mellitus and obesity (20 CFR 404.1520(c) and 416.920(c)).

The claimant’s medically determinable mental impairments of personality 

disorder[] and substance addiction disorder, considered singly and in 

combination, do not cause more than minimal limitation in the claimant’s 

ability to perform basic mental work activities and are therefore not severe 

impairments.

On October 17, 2011, Dr. Kenneth R. Starkey evaluated the claimant at the 

request of the Social Security Administration. The claimant reported his 

problem was “not being able to concentrate.” He said he loses his vision, 

he thought due to his diabetes. He reported these intermittent problems 

with concentration and visual acuity problems since October 2010 with 

gradual worsening. He described vague problems with sleep and stress 

that was due to tax and bankruptcy problems but not requiring formal 

psychiatric treatment. He had a history of alcohol and marijuana 

dependence prior to 1996 and what appeared to be a pervasive and 

persisting pattern of grandiosity and disregard for/violation of the rights 

of others. He can fee[d], bathe, groom and dress himself without 

assistance. He can use a phone, count money, prepare meals, shop for 

groceries and drive an auto without assistance. He completed the 12th

grade in school, attending regular classes. He receives 10% serviceconnected disability compensation for hypertension. On exam, he was 

able to focus and sustain attention without distraction from extraneous 

stimuli. Estimated intellectual functioning was in the Average range. His 

memory functions were intact. His mood was generally euthymic and his 

affect was congruent with this mood. His insight and judgment appeared 

 

appeals for this judicial circuit in the same manner as an appeal from any other judgment of this 

district court.”))

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generally adequate. During the day, he washes the dishes, takes out the 

trash, feeds his rooster and 2 cats, checks his blood sugar and prepares his 

food. He works on the computer, vacuums, does the laundry, plays the 

guitar, watches television, reads, goes to the grocery store and drugstore 

and attends church three days a week. The impressions were alcohol 

dependence—full remission per claimant; cannabis dependence—full 

remission per claimant; personality disorder, nos—narcissistic and 

antisocial traits; chronic leg pain; hypertension; diabetes mellitus and 

hypercholesterolemia with a GAF of 68, indicating some mild symptoms 

(e.g., depressed mood and mild insomnia) or some difficulty in social, 

occupational or school functioning (e.g., occasional truancy, or theft 

within the household), but generally functioning pretty well, has some 

meaningful interpersonal relationships. Dr. Starkey stated that the 

claimant’s ability to understand, remember and carry out simple/concrete 

instructions appeared [well] from a psychological perspective. His ability 

to work independently as opposed with close supervision also appeared 

good. His ability to work with supervisors, co-workers and the general 

public appeared adequate. His ability to deal with work pressures also 

appeared adequate at the present time. The medical evidence of record 

provided by the State agency was review[ed] and the findings were 

considered in the overall assessment.

On May 9, 2012, records from VA Biloxi show in Exhibit 6F, page 14 

through 16, the claimant was psychiatrically evaluated. He reported being 

incarcerated several times, presumably as a result of behavioral 

disturbance but did not wish to talk about the reasons for incarceration. 

He admitted to a long history of being irritable. On Mental Status Exam, 

his affect was anxious and his mood was described as “stressed.” His 

thought process was often tangential. His speech was of normal volume 

but modestly pressured and quite difficult to interrupt. There was no 

evidence of psychosis.

On January 29, 2013, Mobile Veterans Administration personnel said the 

claimant reported experiencing increasing mood fluctuations and 

irritability, which he attributed to “stress.” On the mental status exam, he 

was alert and oriented times 4. There was no involuntary movement 

noted. Eye contact was good. Affect was anxious and he described his 

mood as “stressed.” Thought process was goal-directed and speech was of 

normal rate and volume. There was no evidence of psychosis. Acute risk 

of suicidal behavior was considered low. He had not taken moodstabilizing medication for an extended period of time. He was willing to 

try topiramate.

As for the opinion evidence, more weight is given to Dr. Starkey whose 

opinions are consistent with his objective findings and with the claimant’s 

activities of daily living. Dr. Starkey found only mild symptoms or mild 

difficulty. This is consistent with his finding that the claimant was able to 

focus and sustain attention without distraction from outside stimuli. His 

mood was euthymic and his affect congruent with his mood. Insight and 

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 3 of 18
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judgment were adequate. The claimant’s four broad functional areas were 

no more than mild. The VA records showed a diagnosis of bipolar 

disorder. However, there is little evidence that he actually has bipolar 

disorder, which consists of a history of episodic periods manifested by the 

full symptomatic picture of both manic and depressive syndrome. VA 

records show the claimant’s mood was as he described it. Furthermore, 

the claimant was not taking any medication at these visits. Although the 

claimant reported not getting along with others, his activities of daily 

living do not indicate that he has more than minimal mental limitations. 

He attends church 2-3 times per week, goes grocery shopping, reads, pays 

his own bills, writes pen pals, and engages in religious studies.

In making this finding, the undersigned has considered the four broad 

functional areas set out in the disability regulations for evaluating mental 

disorders and in section 12.00C of the Listing of Impairments. These four 

broad functional areas are known as the “paragraph B” criteria.

The first functional area is activities of daily living. In this area, the 

claimant has no limitation. He mows the grass and uses a wheelbarrow to 

clean up yard debris. He prepares meals, cleans house, washes dishes, 

does the laundry, and enjoys reading and engaging in religious studies. 

He cares for his rooster and his uncle’s disabled son.

The next functional area is social functioning. In this area, the claimant has 

mild limitation. The claimant stated that he does not like being around 

others. However, he goes grocery shopping and attends church 2-3 times 

per week. He also corresponds with pen pals. He attends college classes.

The third functional area is concentration, persistence or pace. In this area, 

the claimant has mild limitation. The claimant stated that he enjoys 

reading and religious studies. He is also capable of paying his own bills. 

He attends college classes and is a full-time student making A’s and B’s. 

The fourth functional area is episodes of decompensation. In this area, the 

claimant has experienced no episodes of decompensation, which have 

been of extended duration. There is no indication in the record that the 

claimant has ever had any such episodes.

Because the claimant’s medically determinable mental impairments cause 

no more than “mild” limitation in any of the first three functional areas 

and “no” episodes of decompensation which have been of extended 

duration in the fourth area, they are not severe.

The limitations identified in the “paragraph B” criteria are not a residual 

functional capacity assessment but are used to rate the severity of mental 

impairments at steps 2 and 3 of the sequential evaluation process. The 

mental residual functional capacity assessment used at steps 4 and 5 of the 

sequential evaluation process requires a more detailed assessment by 

itemizing various functions contained in the broad categories found in 

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 4 of 18
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paragraph B of the adult mental disorders listings in 12.00 of the Listing of 

Impairments. Therefore, the following residual functional capacity 

assessment reflects the degree of limitation the undersigned has found in 

the “paragraph B” mental function analysis.

4. The claimant does not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the 

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . .

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to perform

medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except

lifting more than 50 pounds occasionally or more than 25 pounds 

frequently. During an 8-hour workday, he can stand and/or walk 

approximately 6 hours and sit for approximately 6 hours. He can 

occasionally climb ramps and stairs but never climb ladders, ropes or 

scaffolds. He can occasionally balance, stoop, kneel, crouch and crawl. 

He should avoid all exposure to workplace hazards, such as unprotected 

machinery and unprotected heights. His work should be limited to 

simple routine repetitive tasks involving simple work related decisions 

with few workplace changes. He can have occasional interaction with 

the public and with co-workers.

. . .

The claimant testified that he graduated from high school and attends 

Bishop State in the computer program. He began his current schooling in 

2011 and has less than one year to finish. He will then be trained to repair 

computers. He stands 5’9” tall and weighs 289 pounds. He draws $129.00 

per month from the Veterans Administration (VA) for his pension. He also 

gets $585.00 a month from VA to go to school. He was in the National 

Guard for 121⁄2 years as a Unit Tech Supply Sargent. He last work[ed] in 

air-conditioner maintenance for a few months. He has not worked since 

2010. However, he has looked for work but has been unable to find work. 

He lives in a trailer rent fr[ee] and helps his pastor with raking leaves and 

gathering eggs. He uses a wheelbarrow to move leaves at home. He 

attends school 5 days a week. His classes are just over an hour. He works 

in lab after classes and stays until 3 working on computers. He is a fulltime student. He has a driver’s license and does drive. He takes oral 

medication for his diabetes but overeats due to stress. He has some 

medication that controls his high blood pressure. He had gallbladder 

surgery within the past year. He sees a psychologist. He is actively 

involved in the church and denied using drugs or alcohol since the 1980s. 

He has two grown children who live out of state. He stated that he cannot 

work now due to hip and leg problems. He gets dizzy when he stands. 

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 5 of 18
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Sitting causes problems and he has to change positions frequently. He 

also reported difficulty sleeping. He takes a lot of medicine. His current 

grades are A’s and B’s. His medication side effects are dizziness, anger 

and overeating. His highest weight was 315 pounds. During the day, he 

does household chores and helps his landlord by raking some leaves and 

caring for his chickens. He rests in between doing his chores. He does his 

chores 1 to 2 times per week for 30 minutes at a time. He takes the bus to 

go for treatment at VA. In school, he has 2 teachers and [] 2 classes. He 

goes to the learning center for several hours to do his assignments.

On August 24, 2011, the claimant completed a Function Report—Adult. 

The claimant stated that he cooked, cleaned, ran his family members to 

work and doctor’s appointments. He does the laundry, prepares meals 

and cleans the kitchen. The claimant cares for his rooster, two cats and his 

uncle’s disabled son. He said he has difficulty sleeping at night and lies 

awake most of the night. He has no difficulties with his own personal care 

and hygiene. He prepares his meals and snacks. This takes him about 20 

minutes. He said he could not stand for long periods. He cleans the house, 

does the laundry, mows the yard and does other yard clean up. He goes 

outside daily. He shops for food and household supplies about 2-3 times 

per week. He is able to pay bills and cunt change. He enjoys reading, 

writing pen pals, and religious studies. He does these things fairly well. 

He related that he could not stand or write for long periods. He said he 

attends church twice a week. He goes to church and the library on a 

regular basis. He does not need to be reminded to take medication or go 

places. He does need someone to accompany him. He reported getting 

mad easily. He does not like to be around people for long periods. He can 

walk about 1 mile before he has to stop and rest and would need to rest 

about 30 minutes before resuming walking. He reported getting along 

very poorly with authority figures. He has been fired or laid off from a job 

because he has a criminal record.

After careful consideration of the evidence, the undersigned finds that the 

claimant’s medically determinable impairments could reasonably be 

expected to cause the alleged symptoms; however, the claimant’s 

statements concerning the intensity, persistence and limiting effects of 

these symptoms are not entirely credible for the reasons explained in this 

decision.

. . .

Progress notes from VA Biloxi cover [the] period from January 5, 2010 to 

May 18, 2012. On April 12, 2012, the claimant reported he was diagnosed 

with Type 2 diabetes mellitus in 1982. He has never been on insulin. He 

insisted he was doing “really well now.” He also had hypertension, 

hyperlipidemia and chronic obesity. His blood pressure was 157/82. His 

weight was 291 and height 69”. There was only mild tenderness of the 

back with limitation of range of motion. The extremities had no gross 

changes. The assessments were acute low back strain, Type 2 diabetes 

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 6 of 18
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mellitus, hypertension, hyperlipidemia, morbid obesity, chronic hip and 

knee pain due to obesity and apparent left hydrocele. The diagnoses were 

bipolar disorder, nos (provisional diagnosis); eating disorder (binge

eating); morbid obesity; Type II diabetes mellitus and hypertension. He 

was not taking any medications. He was offered topiramate for possible 

benefit with weight loss and mood stability but refused. He was also 

offered referral for psychotherapy but declined this as well.

On June 28, 2012, Mobile Veterans Administration personnel reported the 

claimant’s Alc was 7.1. On August 1, 2012, visual acuity corrected was 

20/20 in the right eye and 20/20 in the left eye. On August 10, 2012, the 

claimant reported he was “doing fine and stress is a little better.” On 

August 23, 2012, he was seen with complaints of loose stools, pain in the 

legs and hips and dizziness. His blood pressure was 130/80. He rated his 

pain [as] 5 on a 4-6 scale. He reported pain with weight bearing activities 

and stress and that rest alleviated the pain. His assessments were subacute 

low back strain with minimal findings; Type 2 diabetes mellitus under 

poor control; fecal urgency, hypertension, hyperlipidemia, morbid 

obesity, chronic hip and knee pain and apparent left hydrocele. The doctor 

wanted to put him on insulin but he refused, saying he was going to lose 

50 pounds before his next visit. His hypertension was doing well on 

Atenolol 50/chlorthalidone and Valsartan. His hyperlipidemia was doing 

well on current therapy. His hip and knee pain was due to obesity. He had 

no current symptoms of hydrocele. On November 16, 2012, the claimant 

reported back pain mostly in the left thoracic back near inferior tip of the 

left scapula. Radiological report impression was flowing osteophyte 

formation, consistent with DISH. There was mild anterior wedge 

deformity of T11 and correlation with a bone density study [being] 

recommended. X-rays of the hips revealed mild bilateral degenerative 

arthritis in the hips. X-rays of the lumbar spine revealed degenerative disc 

disease and degenerative facet disease . . . .

The claimant testified that he could not work due to hip and leg problems. 

However, his activities of daily living do not reflect that he has any 

disabling functional limitations that would preclude the claimant from all 

work. He testified that he mows the lawn, rakes and uses a wheelbarrow. 

He does laundry, prepares his own meals, washes the dishes, cleans the 

house, shops for groceries and household supplies 2-3 times per week[,] 

[a]ttends church 2-3 times per week and goes to the library on a regular 

basis. Furthermore, the claimant is a full-time student in college and 

attends regular classes and labs. He has no difficulties taking care of his 

own personal hygiene. Moreover, the medical evidence does not reflect 

such limitations that would preclude the claimant from perform[ing] a 

range of medium work, as described in the beginning of this finding. He 

does have Type 2 diabetes mellitus; however, this appears to be controlled 

with medication. He reported back pain. However, VA records showed 

only mild tenderness of the back. The assessment was subacute low back 

strain with minimal findings. X-rays of the hips revealed only mild 

bilateral degenerative arthritis in the hips. There was mention [of] 

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 7 of 18
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degenerative disc disease of the lumbar spine but there was [] no medical 

source statement indicating what functional limitations the claimant had 

and[,] as stated earlier, his activities of daily living do not reflect disabling 

functional limitations[] whatsoever. Therefore, the claimant’s medical 

records simply fail to show that he would be precluded from perform[ing] 

a range of medium work as previous[ly] described.

6. The claimant is unable to perform any past relevant work (20 

CFR 404.1565 and 416.965).

. . .

7. The claimant was born on March 12, 1952 and was 58 years old, 

which is defined as an individual of advanced age, on the alleged 

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to 

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination 

of disability because using the Medical-Vocational Rules as a 

framework supports a finding that the claimant is “not disabled,” 

whether or not the claimant has transferable job skills (See SSR 82-41 

and 20 CFR Part 404, Subpart P, Appendix 2).

10. 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 

404.1569, 404.1569(a), 416.969, and 416.969(a)).

. . .

If the claimant had the residual functional capacity to perform the full 

range of medium work, a finding of “not disabled” would be directed by 

Medical-Vocational Rule 203.15. However, the claimant’s ability to 

perform all or substantially all of the requirements of this level of work 

has been impeded by additional limitations. To determine the extent to 

which these limitations erode the unskilled medium occupational base, 

the Administrative Law Judge asked the vocational expert whether jobs 

exist in the national economy for an individual with the claimant’s age, 

education, work experience, and residual functional capacity. The 

vocational expert testified that given all of these factors the individual 

would be able to perform the requirements of representative occupations 

such as industrial cleaner, medium, unskilled SVP 2, DOT #381.687-014, 

with 214,000 in existence in the national economy and 2,100 in the state of 

Alabama; production assembler, light, unskilled SVP 2, DOT #706.687-010

with 488,000 jobs in existence in the national economy and 7,300 in the 

state of Alabama; surveillance monitor, sedentary, unskilled SVP 2, DOT 

#379.367-010, with 102,000 jobs in existence in the national economy and 

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 8 of 18
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868 in the state of Alabama; kitchen helper, DOT #318.687-010, medium 

unskilled SVP 2, with 419,000 jobs in existence in the national economy 

and 2,300 in the state of Alabama; laundry worker, DOT #361.684-014, 

with 150,000 jobs in existence in the national economy, and 1,800 in the 

state of Alabama.

Pursuant to SSR 00-4p, the undersigned has determined that the 

vocational expert’s testimony is consistent with the information contained 

in the Dictionary of Occupational Titles. 

Based on the testimony of the vocational expert, the undersigned 

concludes that, considering the claimant’s age, education, work 

experience, and residual functional capacity, the claimant is capable of 

making a successful adjustment to other work that exists in significant 

numbers in the national economy. A finding of “not disabled” is therefore 

appropriate under the framework of the above-cited rule.

11. The claimant has not been under a disability, as defined in the 

Social Security Act, from August 18, 2010, through the date of this 

decision (20 CFR 404.1520(g) and 416.920(g)). 

 

(Tr. 25-28, 28, 29-30, 30, 30-31, 31 & 32-33 (internal citations omitted; emphasis in 

original; footnote added).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-4) 

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. An ALJ, in turn,

uses a five-step sequential evaluation to determine whether the claimant is 

disabled, which considers: (1) whether the claimant is engaged in 

substantial gainful activity; (2) if not, whether the claimant has a severe 

impairment; (3) if so, whether the severe impairment meets or equals an 

impairment in the Listing of Impairments in the regulations; (4) if not, 

whether the claimant has the RFC to perform her past relevant work; and 

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(5) if not, whether, in light of the claimant’s RFC, age, education and work 

experience, there are other jobs the claimant can perform.

Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)2 (per 

curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f)); Phillips v. 

Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).

If a plaintiff proves that he cannot do his past relevant work, as here, it then 

becomes the Commissioner’s burden—at the fifth step—to prove that the plaintiff is 

capable—given his age, education, and work history—of engaging in another kind of 

substantial gainful employment that exists in the national economy. Id. at 1237 & 1239; 

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 

1723, 146 L.Ed.2d 644 (2000); 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 he can perform those medium (light 

and sedentary) jobs3 identified by the vocational expert (“VE”), 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] 

 2 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir.R. 36-2.

3 The focus of this Court will not deviate from the ALJ’s medium work RFC 

determination and the medium jobs identified by the VE inasmuch as it appears that had the 

determination been made that the advanced-age plaintiff could only perform “light” or 

“sedentary” work, he would have been found to be disabled under the grids.

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 10 of 18
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decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).4 Courts are precluded, 

however, from “deciding the facts anew or re-weighing the evidence.” Davison v. 

Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. 

Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence 

preponderates against the Commissioner’s findings, [a court] must affirm if the decision 

reached is supported by substantial evidence.’” Id. (quoting Crawford v. Commissioner of 

Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).

On appeal to this Court, Gossard offers three reasons why the Commissioner’s 

decision to deny him disability insurance benefits and supplemental security income is 

in error (i.e., not supported by substantial evidence): (1) the ALJ erred in finding he does 

not suffer from the severe impairment of personality disorder; (2) the ALJ erred in 

failing to fulfill his duty to develop the record by ordering a consultative orthopedic 

examination; and (3) the ALJ’s residual functional capacity determination at the fifth 

step of the sequential evaluation process is not supported by substantial evidence. In 

this instance, the undersigned need not consider plaintiff’s first assignment of error 

inasmuch as it is clear that the ALJ’s RFC determination is not supported by substantial 

evidence and that the ALJ should have ordered a consultative examination of the 

plaintiff.5

 4 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 The Court also parenthetically notes that it is impossible to understand the ALJ’s 

failure to identify the severe impairments of degenerative disk and facet disease of the lumbar 

spine, mild bilateral degenerative arthritis of the hips, and flowing osteophyte formation 

consistent with DISH of the T-spine with mild anterior wedge deformity of T11. (Compare Tr. 

414-416 with Tr. 25.)

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Initially, the Court notes that the responsibility for making the residual 

functional capacity determination rests with the ALJ. Compare 20 C.F.R. §§ 404.1546(c) & 

416.946(c) (“If your case is at the administrative law judge hearing level . . ., the 

administrative law judge . . . is responsible for assessing your residual functional 

capacity.”) with, e.g., Packer v. Commissioner, Social Security Admin., 542 Fed. Appx. 890, 

891-892 (11th Cir. Oct. 29, 2013) (per curiam) (“An RFC determination is an assessment, 

based on all relevant evidence, of a claimant’s remaining ability to do work despite her 

impairments. There is no rigid requirement that the ALJ specifically refer to every piece 

of evidence, so long as the ALJ’s decision is not a broad rejection, i.e., where the ALJ 

does not provide enough reasoning for a reviewing court to conclude that the ALJ 

considered the claimant’s medical condition as a whole.” (internal citation omitted)). A 

plaintiff’s RFC—which “includes physical abilities, such as sitting, standing or walking, 

and mental abilities, such as the ability to understand, remember and carry out 

instructions or to respond appropriately to supervision, co-workers and work 

pressure[]”—“is a[n] [] assessment of what the claimant can do in a work setting despite 

any mental, physical or environmental limitations caused by the claimant’s

impairments and related symptoms.” Watkins, supra, 457 Fed. Appx. at 870 n.5 (citing 20 

C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)). Here, the ALJ determined Gossard’s physical

RFC as follows: “After careful consideration of the entire record, the undersigned 

finds that the claimant has the residual functional capacity to perform medium work 

as defined in 20 CFR 404.1567(c) and 416.967(c) except lifting more than 50 pounds 

occasionally or more than 25 pounds frequently. During an 8-hour workday, he can 

stand and/or walk approximately 6 hours and sit for approximately 6 hours. He can 

occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds. He 

can occasionally balance, stoop, kneel, crouch and crawl. He should avoid all 

Case 1:14-cv-00395-C Document 21 Filed 05/29/15 Page 12 of 18
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exposure to workplace hazards, such as unprotected machinery and unprotected 

heights.” (Tr. 28 (emphasis in original).)

To find that an ALJ’s RFC determination is supported by substantial evidence, it 

must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial 

record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL 1020428, 

*9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. 

Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.Ala. Feb. 14, 2013) 

(“’[T]he ALJ must link the RFC assessment to specific evidence in the record bearing 

upon the claimant’s ability to perform the physical, mental, sensory, and other 

requirements of work.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013)6; see also 

Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per curiam) (“The ALJ 

must state the grounds for his decision with clarity to enable us to conduct meaningful 

review. . . . Absent such explanation, it is unclear whether substantial evidence 

supported the ALJ’s findings; and the decision does not provide a meaningful basis 

upon which we can review [a plaintiff’s] case.” (internal citation omitted)).7

 6 In affirming the ALJ, the Eleventh Circuit rejected Packer’s substantial evidence 

argument, noting, she “failed to establish that her RFC assessment was not supported by 

substantial evidence[]” in light of the ALJ’s consideration of her credibility and the medical 

evidence. Id. at 892.

7 It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the 

responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the 

grounds for an RFC determination. Stated differently, “linkage” may not be manufactured 

speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather, 

must be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL 

3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s 

decision because, according to the Commissioner, overall, the decision was “adequately 

explained and supported by substantial evidence in the record”; holding that affirming that 

decision would require that the court “ignor[e] what the law requires of the ALJ[; t]he court 

‘must reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with 

sufficient reasoning for determining that the proper legal analysis has been conducted’” 

(quoting Hanna, 395 Fed. App’x at 636 (internal quotation marks omitted))); see also id. at *3 n.4 

(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have relied . . . . 

(Continued)

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In this case, the undersigned cannot find that the ALJ has provided the required 

“linkage” between the record evidence and his “physical” RFC determination necessary 

to facilitate this Court’s meaningful review of his decision. To be sure, the ALJ made 

much of plaintiff’s testimony at the administrative hearing and comments in the 

disability reports regarding his daily activities (compare Tr. 29 with Tr. 30-31) in an 

attempt to establish that plaintiff can perform the physical requirements of medium 

work; however, nothing about that evidence provides a firm basis that plaintiff has the 

ability to perform the physical requirements of medium work, particularly considering 

that the ALJ “glossed” over or totally ignored plaintiff’s clear hearing testimony that he 

raked leaves and pushed a wheelbarrow of leaves around the property on which he 

lived rent-free for about 30 minutes only once or twice a week (Tr. 55-56), that he often 

stops to rest while performing household duties in the small trailer in which he lives 

(Tr. 55), and his consistent reports and testimony that he cannot stand for lengthy 

periods (compare Tr. 45, 47 & 52 with Tr. 170). In ultimately determining plaintiff can 

perform the requirements of medium work, the ALJ focused solely on certain comments 

to make it appear that Gossard is capable of performing much more in the way of 

physical activity than that actually testified to by him (or reported by him). (See Tr. 30-

31.) When plaintiff’s reporting/testimony of his daily activities is understood in proper 

 

There may very well be ample reason, supported by the record, for [the ALJ’s ultimate 

conclusion]. However, because the ALJ did not state his reasons, the court cannot evaluate 

them for substantial evidentiary support. Here, the court does not hold that the ALJ’s ultimate 

conclusion is unsupportable on the present record; the court holds only that the ALJ did not 

conduct the analysis that the law requires him to conduct.” (emphasis in original)); Patterson v. 

Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon 

the reasons he gave.”).

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context,8 there is simply no basis to find that plaintiff can perform the lifting (and 

carrying9) requirements of medium work or the prolonged standing requirement of 

medium work, see SSR 83-10 (“In most medium jobs, being on one’s feet for most of the 

workday is critical.”). Plaintiff’s testimony/reports regarding his daily activities sheds 

very little, if any, light on his ability to lift and carry weight and certainly does not 

provide substantial evidence for the determination that plaintiff can frequently lift and 

carry 25 pounds. This is not only because plaintiff offered no estimate on the weight he 

can lift and carry but also because plaintiff continuously “qualified” his testimony 

regarding the daily activities he performed (like mowing, household chores, raking 

leaves and pushing a wheelbarrow) with comments that he could not perform those 

activities continuously and, instead, had to take frequent rests because of his inability to 

stand for long periods. And there is absolutely no evidence in the record that plaintiff 

 8 Although the ALJ made the cryptic and canned statement that “claimant’s 

statements concerning the intensity, persistence and limiting effects of these symptoms are not 

entirely credible” (Tr. 30), he nowhere identifies any specific and adequate reasons for 

questioning plaintiff’s testimony that he cannot stand for prolonged periods or that he must 

often rest when performing certain activities (such as household chores, mowing, raking leaves, 

etc.) because of the inability to stand for long periods (see Tr. 30-31). Accordingly, the 

undersigned must accept plaintiff’s testimony in this regard as true, see Foote v. Chater, 67 F.3d 

1553, 1561 (11th Cir. 1995) (“Failure to articulate the reasons for discrediting subjective pain 

testimony requires, as a matter of law, that the testimony be accepted as true.”), and the truth of 

such testimony simply cannot be reconciled with the ability to perform the requirements of 

medium work. 

9 The undersigned finds interesting that the ALJ failed to make mention in his RFC 

determination of the claimant’s ability to “carry” weight. (See Tr. 28 (“[T]he claimant has the 

residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and

416.967(c) except lifting more than 50 pounds occasionally or more than 25 pounds 

frequently.”).) Even if the undersigned was to consider this failure harmless in light of the 

hypothetical posed to the VE at the hearing and the VE’s response (see Tr. 61-62), what this 

Court cannot ignore is the lack of any evidence in the record that plaintiff can frequently lift and 

carry 25 pounds and occasionally lift 50 pounds. Plaintiff’s “wheelbarrow” testimony simply 

does not “ring the bell” in this regard, given that there is to nothing suggest that pushing a 

wheelbarrow of unidentified weight for 30 minutes (with rests) for one to two times a week 

“equates” to the ability to frequently lift and carry 25 pounds or occasionally lift 50 pounds.

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can perform the prolonged standing required of medium work,10 in light of plaintiff’s 

qualifying testimony regarding certain daily activities (e.g., raking and wheelbarrow 

usage, household chores, etc.) and his clear testimony that his “activities” as a full-time 

student are sedentary in nature (see Tr. 66 (“I don’t stand up going to school, I’m sitting 

down all the time.”)).11

Any attempt by the Commissioner to now rely on the physical residual 

functional capacity assessment completed by non-examiner Dr. E. Russell March, Jr. (see 

Tr. 241-248) to supply substantial support for the ALJ’s RFC determination12 would be 

unavailing for several reasons. First, the ALJ makes no mention of this RFC assessment 

in his decision and, therefore, any reliance by the Court on this assessment would be 

improper because it would require the undersigned to engage in a reweighing of the 

evidence. Compare Davison, supra, 370 Fed. Appx. at 996 (courts are precluding from 

“deciding the facts anew or re-weighing the evidence.”) with Durham, supra, at *3 n.4 

(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have

relied . . . . There may very well be ample reason, supported by the record, for [the 

ALJ’s ultimate conclusion]. However, because the ALJ did not state his reasons, the 

 10 The undersigned would note that the medium jobs identified by the VE in 

response to the ALJ’s hypothetical undoubtedly require prolonged standing inasmuch as the 

ALJ stressed in his hypothetical question that the hypothetical individual would be capable of 6 

hours of standing during an 8-hour workday and made no mention of walking (compare Tr. 61 

with Tr. 62). 

11 In addition, attending church 2-3 times weekly and going to the library weekly 

does not in any manner suggest that plaintiff can perform the requirements of medium work; 

sedentary (or light) work, perhaps, but not medium work.

12 Indeed, but for the ALJ making no mention of the non-examiner’s RFC 

assessment (see Tr. 23-33), this assessment dovetails with that of the ALJ with respect to the 

lifting and carrying, standing, walking, and sitting requirements of medium work (compare Tr. 

28 with Tr. 242).

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court cannot evaluate them for substantial evidentiary support. Here, the court does 

not hold that the ALJ’s ultimate conclusion is unsupportable on the present record; the 

court holds only that the ALJ did not conduct the analysis that the law requires him to 

conduct.” (emphasis in original)). In addition, this non-examining RFC assessment was 

completed on October 3, 2011 (Tr. 248)—and makes clear that it is based on plaintiff’s 

diabetes, hypertension, morbid obesity, dermatitis, and tinea versicolor (Tr. 242)—more 

than one year prior to x-ray films showing flowing osteophyte formation consistent 

with DISH of the T-spine, mild anterior wedge deformity of T11 (Tr. 414), mild bilateral 

degenerative arthritis in the hips (Tr. 415), and degenerative disk and facet disease of 

the lumbar spine (Tr. 416). It would be rank speculation for this Court to conclude that 

these x-ray findings would have had no impact on Dr. March’s RFC assessment made 

over a year earlier.

13

Because substantial evidence of record does not support the Commissioner’s 

determination that Gossard can perform the physical requirements of medium work as 

identified by the ALJ (see Tr. 28), the Commissioner’s fifth-step determination is due to 

be reversed and remanded for further proceedings not inconsistent with this decision. 

 13 In his decision, the ALJ does make mention of these x-ray findings (Tr. 30 & 31) 

but ultimately appears to dismiss them based upon his observation that “no medical source 

statement [was produced by the VA] indicating what functional limitations the claimant had[.]”

(Tr. 31.) The problems with this comment, however, are that it appears to contain a backhanded 

admission that the x-ray findings (at least those of the lumbar spine) would support functional 

limitations and, moreover, “begs” whether the ALJ should have obtained the services of an 

orthopedist (or other specialist) to evaluate plaintiff, particularly in light of the comment on the 

T-spine report that “correlation with a bone density study is recommended[]” (Tr. 414). See 

Ingram v. Commissioner of Social Security, 496 F.3d 1253, 1269 (11th Cir. 2007) (“The 

administrative law judge has a duty to develop the record where appropriate but is not 

required to order a consultative examination as long as the record contains sufficient evidence 

for the administrative law judge to make an informed decision.”). Given the undersigned’s 

earlier analysis with respect to plaintiff’s “daily activities” and the just-mentioned comment by 

the ALJ, the undersigned finds that this case represents the rare one in which a consultative 

examination by an orthopedist (or other physician) was required in order for the ALJ to make 

an informed decision. See id.

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CONCLUSION

In light of the foregoing, it is ORDERED that the decision of the Commissioner 

of Social Security denying plaintiff benefits be reversed and remanded pursuant to 

sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 

115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The 

remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for 

purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 

292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over 

this matter.

DONE and ORDERED this the 29th day of May, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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