IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

BRENDA HARRISON, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 06-0166-M 

: 

JO ANNE B. BARNHART, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),

Plaintiff seeks judicial review of an adverse social security

ruling which denied claims for disability insurance benefits and

Supplemental Security Income (hereinafter SSI). 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 SerCase 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 1 of 12
1This is actually the second decision by the ALJ; for a complete

history of this action at the administrative level, see the ALJ’s

summary at Tr. 13.

2

vices, 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 evidence 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).

Plaintiff was born September 27, 1960. At the time of the

most recent administrative hearing, Harrison was forty-four years

old, had completed some post-high school education (Tr. 268), and

had previous work experience as a licensed practical nurse,

substitute teacher, and tax preparer (Tr. 281). In claiming

benefits, Plaintiff alleges disability due to arthritis, back

pain, diabetes, hypertension, cognitive decline, depression, and

sleep apnea (Doc. 10).

The Plaintiff protectively filed applications for disability

benefits and SSI on June 19, 2002 (Tr. 83-85, 235-38). Benefits

were denied following a hearing by an Administrative Law Judge

(ALJ) who determined that Harrison could perform her past

relevant work as a Teacher’s Aide and a Tax Preparer (Tr. 10-

26).1 Plaintiff requested review of the hearing decision (Tr.

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 2 of 12
2The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

3

246-52) by the Appeals Council, but it was denied (Tr. 6-8).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Harrison

alleges that: (1) The ALJ improperly denied the opinions of the

examining doctors of record, including her treating doctor,

relying instead on the opinions of non-examining physicians; (2)

the medical experts (hereinafter ME’s) were not qualified to

provide evidence; and (3) the ALJ did not develop a full and fair

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

claims (Doc. 14).

Plaintiff first claims that the ALJ improperly denied the

opinions of the examining doctors of record, including her

treating doctor, relying instead on the opinions of non-examining

physicians. It should 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);2 see also 20 C.F.R. § 404.1527 (2005). The

Court further notes that the Eleventh Circuit Court of Appeals

has held that the opinion of a non-examining physician “is

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 3 of 12
4

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)).

In his decision, the ALJ rejected the opinions of examining

physicians Dr. Bruce Taylor, a treating doctor (Tr. 205-22, 228-

34), Psychologist Donald W. Blanton (Tr. 178-83), and

Psychologist John Goff (Tr. 188-96), while relying on the

opinions of Dr. James Anderson, Psychologist Doug McKeown, and

Dr. W. B. Stonecypher although they never examined Harrison (Tr.

20-22). Anderson and McKeown testified at the second evidentiary

hearing as medical experts while Stonecypher provided an opinion

in the initial stages of the administrative process (Tr. 298-

307). On first blush, Plaintiff’s claim appeared to have merit. 

However, after comparing the decision with the evidence of

record, the Court found substantial support for the ALJ’s

decision.

The ALJ specifically rejected the opinions of Dr. Taylor

because his “clinical records provide no support for the

significant limitations shown in his Medical Source Statement

(Physical) and his Clinical Assessment of Pain forms” (Tr. 21). 

Taylor had indicated that Harrison was never capable of lifting

or carrying more than five pounds and could never stoop, crouch,

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 4 of 12
3Celebrex is used to relieve the signs and symptoms of

osteoarthritis, rheumatoid arthritis in adults, and for the management

of acute pain in adults. Physician's Desk Reference 2585-89 (58th ed.

2004). 

4Tramadol, also known as Ultram, is an analgesic “indicated for

the management of moderate to moderately severe pain.” Physician's

Desk Reference 2064-65 (52nd ed. 1998). 

5The Court notes Plaintiff’s objection to the ALJ’s finding that

Dr. Taylor had failed to confirm his opinions with objective medical

evidence (Doc. 11, p. 12). The Court is aware that the Eleventh

Circuit Court of Appeals has held that "arthritis is an affliction of

such common occurrence that laboratory findings are unnecessary; the

obvious manifestations of arthritis during a physical examination

qualify as objective medical facts or clinical findings.” Sharfarz v.

Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (citing Walden v. Schweiker,

672 F.2d 835, 839 (11th Cir. 1982)). The Court finds, however, that

the ALJ’s finding on this point of law is, at most, harmless error. 

Dr. Taylor’s notes are so brief and lacking in detail that they do not

suggest that any comprehensive physical examination ever took place.

5

kneel, crawl, or climb (Tr. 230-31); the doctor also indicated

that Plaintiff’s pain would always be a significant element in

her life, that it would distract her from adequately performing

daily activities, and that physical activity would increase her

pain so much that she would not be able to complete tasks (Tr.

232-33). Dr. Taylor’s medical notes, spanning January 22, 2004

through December 28, 2004, however, provide very little

information regarding Plaintiff’s impairments (Tr. 205-22, 228-

29). While there are repeat prescriptions for celebrex3 and

tramadol,4 there is nothing else to support the findings of

extreme limitation and pain that Dr. Taylor asserts.5

Dr. Anderson testified as a medical expert that he had

reviewed all of the medical evidence and determined that she had

asymptomatic hypertension and insulin-dependent diabetes but that

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 5 of 12
6“Light work involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10 pounds. 

Even though the weight lifted may be very little, a job is in this

category when it requires a good deal of walking or standing, or when

it involves sitting most of the time with some pushing and pulling of

arm or leg controls. To be considered capable of performing a full or

wide range of light work, you must have the ability to do

substantially all of these activities. If someone can do light work,

we determine that he or she can also do sedentary work, unless there

are additional limiting factors such as loss of fine dexterity or

inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b)

(2005).

6

she was capable of performing sedentary and, maybe, light work

(Tr. 298-302). The ALJ gave weight to this testimony (Tr. 20).

Dr. W. B. Stonecypher never examined Plaintiff, yet, after

reviewing the available evidence of record at that time, found

Harrison capable of performing light work6 (Tr. 165-72). As

support for his opinion, Stonecypher relied on the physical

examination of Neurologist Dr. Jamal A. Halim who found Harrison

capable of performing medium work (Tr. 170-71; cf. Tr. 163-64). 

The ALJ gave weight to Stonecypher’s opinion as supported by the

evidence provided by Dr. Halim (Tr. 21).

The ALJ rejected the opinion of Psychologist Blanton as

being “inconsistent with his own report and unsupported by the

objective evidence of record” (Tr. 22). The ALJ specifically

pointed out the inconsistencies in his “diagnosis of a GAF of 60

and description of the claimant’s daily activities, social

functioning, and memory functioning” with “his ratings of

moderately severe psychological limitations;” the ALJ also

expressed the opinion that the Psychologist had relied too

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 6 of 12
7The ALJ specifically found that Plaintiff was not credible (Tr.

22), a finding not challenged in this action.

8Defendant has stated that “[a] GAF score between 51-60 indicates

“moderate symptoms (e.g., flat affect and circumstantial speech,

occasional panic attacks) or moderate difficulty in social,

occupational or school functioning (e.g., few friends, conflicts with

peers or co-work).” American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders, 32 (4th ed. 1994) (see Doc.

14, p. 7 n.4). 

7

heavily on Plaintiff’s subjective complaints in reaching his

conclusions although she was not a credible witness (id.).7 

The record shows that Blanton, after an examination on April

25, 2003, indicated his belief that Harrison was moderately

severely limited in her ability to maintain social functioning,

perform daily activities, and maintain concentration in

completing tasks in a timely manner (Tr. 182). The

Psychologist’s mental examination, however, revealed normal

thought and conversation, intact associations, and no confusion;

there was no evidence of hallucination, delusion, persecutory

type fear, or phobia (Tr. 179-80). She was oriented to time,

place, person and situation, and had average intelligence; her

“memory was fair for immediate, recent and remote recall” (Tr.

180). Blanton diagnosed Harrison to have pain disorder with

depression, an obsessive personality and a Global Assessment of

Function of 608

 (Tr. 181). 

The Court agrees with the ALJ’s conclusion that these

findings do not suggest moderately severe limitations in

maintaining concentration or social functioning. Though

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 7 of 12
8

Plaintiff reported that she did not have much of a social life

(Tr. 180), Blanton’s examination findings do not provide support

for a finding that she cannot maintain social functioning.

The ALJ rejected the opinions of Psychologist Goff based on

his “finding that the claimant has suffered a decline in her

cognitive functioning due to longstanding and poorly controlled

diabetes and hypertension” (Tr. 22). The ALJ found that neither

Harrison’s diabetes nor hypertension were poorly controlled (Tr.

23-24). 

Goff examined Harrison on October 31, 2003 and administered

several tests, including the 21-item test from which he deduced

that she was not malingering throughout the examination (Tr. 188-

96). On the WAIS-III, Plaintiff scored a verbal IQ of 87, a

performance IQ of 77, and a full scale IQ of 80, placing her

“toward the lower end of the low average range of psychometric

intelligence” (Tr. 190). Harrison also took the Wechsler Test of

Adult Reading (hereinafter WTAR) which is “a technique for

estimating pre-morbid intellectual functioning;” her predicted

scores of 94, 95, and 92 indicated a 7-point, 18-point, and 12-

point decline from the actual WAIS-III scores (id.). Scores from

the Wechsler Memory Scale-III were low average (Tr. 191). The

Minnesota Multiphasic Personality Inventory-2 revealed an

acceptable response style for dealing with common stresses;

Harrison’s clinical profile suggested she was “very depressed”

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 8 of 12
9

(id.). Goff diagnosed Plaintiff to have Adjustment Disorder with

a moderate Depressed Mood (Tr. 193). The Psychologist then

completed a mental medical source statement form in which he

indicated that Harrison was markedly limited in her interests, in

performing daily activities, in her ability to understand,

remember, and carry out simple and complex instructions and

repetitive tasks; she was also markedly limited in her ability to

maintain attention and concentration for extended periods,

perform activities within a schedule, maintain regular

attendance, and be punctual, and complete a normal workday and

workweek without interruptions from psychologically based

symptoms at a consistent pace (Tr. 194-95). Finally, Goff

thought Harrison was markedly limited in her ability to respond

appropriately to changes in the work setting, customary work

pressures, and in her ability to be aware of normal hazards and

take appropriate precautions (Tr. 196). 

Psychologist McKeown testified at the evidentiary hearing

that there was no test that really measured a decline in IQ; he

went on to say that the WTAR, which Goff used, measured the

“presence of any specific organic factors” (Tr. 305). He went on

to testify that one had to have a baseline intellectual

assessment to measure a decline; McKeown further rejected the

high school academic grades as having set a baseline as those

scores reflect something other than just IQ (Tr. 305-06). 

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 9 of 12
9King administered the WAIS-III to Harrison who had scores of 66,

58, and a Full Scale IQ of 59, a significant drop-off from those

Harrison received when tested by Goff. King went on to find that

Plaintiff had no marked deficits in any area (Tr. 201).

10

McKeown also noted the psychological evaluation of Psychologist

Glen D. King who found her to be malingering9

 (Tr. 304; cf. 198-

203). The ALJ gave weight to McKeown’s testimony as a medical

expert (Tr. 20). 

After examining all of the evidence of record, the Court

finds substantial support for the ALJ’s decision. The medical

records do not support the conclusions of Dr. Taylor or

Psychologists Blanton and Goff. It is incumbent on Plaintiff to

demonstrate her impairments and to further show that she cannot

perform her past relevant work. Macia v. Bowen, 829 F.2d 1009,

1012 (11th Cir. 1987) (citing Sryock v. Heckler, 764 F.2d 834,

835 (11th Cir. 1985)). Harrison has failed in this regard. Even

though the ALJ relied on non-examining physicians to reach his

decision, the decisions of those physicians and psychologists

were based on the records of others who did perform examinations. 

The Court finds that substantial evidence supports that decision. 

Plaintiff’s claim is without merit.

Harrison’s second claim is that the medical experts were not

qualified to provide evidence. According to the Social Security

regulations, an ALJ “may [] ask for and consider opinions from

medical experts on the nature and severity of your impairment(s)

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 10 of 12
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and on whether your impairment(s) equals the requirements of any

impairment listed in appendix 1 to this subpart.” 20 C.F.R. §

404.1527(f)(2)(iii) (2005). The testimony of these medical

experts is supposed to be evaluated the same way as the other

evidence of record.

The record provides the resumes of Dr. Anderson (Tr. 72) and

Psychologist McKeown (Tr. 73). Those records demonstrate that

both men had appropriate degrees and credentials and had years of

experience in their respective fields. The Court finds no merit

in Plaintiff’s claim that they were not qualified.

Harrison has also claimed that the ALJ did not develop a

full and fair record. Plaintiff, more specifically, asserted

that the ALJ should have ordered a consultative psychological

examination if he doubted the conclusions of Goff; Harrison noted

that the ALJ had referred Plaintiff to Psychologist King but had

ordered him not to perform neuropsychological testing (Doc. 11,

p. 10; cf. Tr. 198). The Court notes that the Eleventh Circuit

Court of Appeals has required that "a full and fair record" be

developed by the Administrative Law Judge even if the claimant is

represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735

(11th Cir. 1981). 

The record contains three exams from examining Psychologists

Blanton, Goff, and King as well as the testimony of ME McKeown;

the Court also notes that Plaintiff was examined by Neurologist

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 11 of 12
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Halim. The Court finds that this evidence was sufficient for the

ALJ to have reached a decision and that decision was supported by

substantial evidence. The Court finds that Plaintiff has not

demonstrated that another consultative psychological examination

was necessary.

Harrison has raised three different 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 31st day of October, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00166-M Document 20 Filed 10/31/06 Page 12 of 12