IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

JULIA L. RODGERS, )

)

Plaintiff, )

)

v. ) Civil Action No. 2:15-00011-N

)

CAROLYN W. COLVIN, )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Julia L. Rodgers 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 her applications for disability insurance benefits (“DIB”) and 

supplemental security income (“SSI”). The parties have consented to the exercise of 

jurisdiction by, and this case has been ordered referred to, the undersigned United 

States Magistrate Judge for all proceedings in this Court pursuant to 28 U.S.C. § 

636(c). See Docs. 16, 17. Oral argument was held on October 27, 2015. Doc. 18. 

Present were Byron A. Lassiter, Esq., representing Plaintiff, and Patricia Beyer, 

Esq., representing Defendant Carolyn Colvin.

Upon consideration of the administrative record (“R.”) (Doc. 11), Plaintiff’s 

Brief (Doc. 12), and the Commissioner’s Brief (Doc. 13), the Court has determined 

that the Commissioner’s decision denying Plaintiff’s benefits should be 

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AFFIRMED.1

I. Procedural Background

Plaintiff filed applications for DIB and SSI on May 25, 2011 (see R. 124-34), 

alleging a disability onset date of October 1, 2010.2 See R. 124. Her application was

initially denied. See R. 65-69. Hearings were conducted before Administrative Law 

Judge Michael D. Anderson (“the ALJ”) on January 10, 2013. See R. 43-61. On April 

30, 2013, the ALJ issued the decision, now before this Court, finding Plaintiff not 

disabled. R. 17-42. The Appeals Council issued a decision declining to review the 

ALJ’s determination on November 17, 2014 (see R. 1-7), rendering the

Commissioner’s decision final for purposes of judicial review (see 20 C.F.R. § 

404.981). Claimant timely filed a complaint in this Court on January 13, 2015. See 

Doc. 1.

II. Factual Background

Plaintiff is a resident of Pinehill, Alabama, born March 3, 1983. R. 124. She 

was 29 at the time of the hearing before the ALJ. R. 43, 124. She completed eleventh 

grade, but does not have a GED. R. 47-48. Her past relevant work experience 

includes positions as a fast food worker, a fire-watcher at a construction site, and a 

commercial cleaner. R. 55-57; 145. She has not worked since before the alleged onset 

date of October 1, 2010. R. 145. Plaintiff suffers from a number of medical issues, 

 1 Any appeal taken from this memorandum opinion and order and simultaneously entered separate 

judgment may be made directly to the Eleventh Circuit Court of Appeals. See Doc. 23.

2 Plaintiff alleges that she has been disabled since October 1, 2010, as a result of back injuries 

sustained in an automobile accident. R. 144.

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including degenerative disc disease of the cervical spine (Plaintiff has had cervical 

fusion of vertebrae C4 through C6); cervical radiculopathy; and mild obesity. R. 22.

In December 2010, Plaintiff underwent cervical spine surgery performed by 

Dr. Timothy Holt to address complaints of neck and back pain. R. 245-46, 488. In 

September 2011, Dr. Holt described Plaintiff as “pretty much asymptomatic,” though 

Plaintiff complained of “some pain” in December 2011. R. at 555, 556. Plaintiff has 

continued to complain of neck pain even post-surgery. R. 555, 578. In August 2012, 

she was evaluated for pain and numbness in her neck and arms by Dr. Huey Kidd, 

who recommended physical work limitations.3 R. 578.

III. Claims on Appeal

On appeal to this Court, Plaintiff asserts that the Commissioner’s decision to 

deny benefits is in error (i.e., not supported by substantial evidence) on the following 

grounds:

1. The ALJ erred in finding that Plaintiff could return to her past 

relevant work as a Commercial Cleaner because the work performed 

by Plaintiff as a cleaner did not meet the Commissioner’s criteria for 

“past relevant work”;

2. The ALJ erred in posing a misleading, incomplete hypothetical 

question;

3. The ALJ erred in rejecting the opinion of the treating physician, Dr. 

Kidd, regarding Plaintiff’s pain and medication side effects.

 3 Dr. Kidd opined that Plaintiff could perform activities that fell between the requirements of “light 

work” and “medium work.” R. 580-81.

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Doc. 12 at 2.

IV. Standard of Review

In all Social Security cases, a plaintiff (sometimes referred to as a claimant) 

bears the burden of proving that he or she is unable to perform his or her previous 

work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether 

that burden has been met, and thus a claimant has proven that he or she is disabled, 

the examiner (most often an ALJ) 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 plaintiff’s age, education, and work history (see id); 

and, 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 [residual functional 

capacity, or] RFC[,] to perform her past relevant work; and (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. 2012) (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)).

If a plaintiff proves that he or she cannot do his or her past relevant work, it 

then becomes the Commissioner’s burden to prove that the plaintiff is 

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

kind of substantial gainful employment that exists in the national economy. Id.; 

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Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 

836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] bears the 

burden of demonstrating the inability to return to [his or] her past relevant work, 

the Commissioner of Social Security has an obligation to develop a full and fair 

record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).

The task for this Court is to determine whether the Commissioner’s decision 

to deny a plaintiff benefits is supported by substantial evidence. Substantial 

evidence is defined as more than a scintilla but less than a preponderance, and 

means such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) 

(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “In determining whether 

substantial evidence exists, [a court] 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). Courts are precluded, however, 

from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 

Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 

395 F.3d 1206, 1210 (11th Cir. 2005)). “Even if the evidence preponderates against 

the Commissioner’s findings, [a court] must affirm if the decision reached is 

supported by substantial evidence.” Id. (citing Crawford v. Commissioner of Soc.

Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis added).

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V. Analysis

A. Plaintiff’s Commercial Cleaner position met the requirements for 

“past relevant work”.

Plaintiff contends that her position as a commercial cleaner should not have 

been considered past relevant work because it did not constitute “substantial gainful 

activity.” Doc. 12 at 9. The SSA defines “past relevant work” as “work that you have 

done within the past 15 years that was substantial gainful activity, and that lasted 

long enough for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1); see also 20 C.F.R. § 

404.1565(a). 

The SSA defines “substantial” work activity and “gainful” work activity 

separately. “Substantial work activity” is “work activity that involves doing 

significant physical or mental activities.” 20 C.F.R. § 404.1572(a). Such work “may 

be substantial even if it is done on a part-time basis. Id. Plaintiff’s work included 

vacuuming, cleaning toilets, and dusting (R. 181), which is significant physical 

activity qualifying as substantial work activity. See 20 C.F.R. § 404.1572(a). Plaintiff 

only performed this work for eight hours per week (R. 181), but work is not 

insubstantial merely because it is part-time. See 20 C.F.R. § 404.1572(a).

“Gainful work activity” is “work activity that you do for pay or profit. Work 

activity is gainful if it is the kind of work usually done for pay or profit, whether or 

not a profit is realized.” 20 C.F.R. § 404.1572(b). Plaintiff testified that she earned 

$45 to $75 (per week) for 8 hours of weekly work. Tr. 155, 181. While this is a low 

total, it is monetary income earned for part-time work, and Plaintiff has not shown 

why it should not be considered gainful. See 20 C.F.R. § 404.1572(b).

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The SSA also has a formula for determining the income amount for 

substantial gainful activity in a certain year. 65 Fed. Reg. 82,905. In 2008, the last 

year in which Plaintiff’s earnings were reported for the commercial cleaner position, 

Plaintiff earned $12,429.40, averaging $1035.78 per month. R. 141. In 2008, the 

SSA’s monthly substantial gainful activity threshold was $940 in earnings for 

non-blind individuals. See 65 Fed. Reg. 82,905. Thus, Plaintiff’s earnings in the 

commercial cleaner position constitute substantial gainful activity. See id. Further, 

the VE testified that Plaintiff’s past cleaning working was substantial gainful 

activity based on her earnings records and questions asked of Plaintiff. R. 56-57; R. 

135-142. Thus, the commercial cleaner position was properly considered by the ALJ 

as past relevant work.

B. The ALJ posed an acceptable hypothetical question.

Plaintiff next contends that the ALJ posed an inappropriate hypothetical 

question to the Vocational Expert (VE) that did not include information about 

Plaintiff’s “mild to moderate pain, which could occasionally interfere with 

concentration, persistence, and pace.” R. 25; Doc. 12 at 12-13. “In order for a VE’s 

testimony to constitute substantial evidence, the ALJ must pose a hypothetical 

question which comprises all of the claimant’s impairments.” Jones, 190 F.3d at 

1229; see also Pendler v. Heckler, 767 F.2d 1561, 1562 (11th Cir. 1985) (stating that 

in order for a hypothetical question to constitute substantial evidence, it must 

comprehensively describe the claimant’s impairments and limitations).

“Concentration, persistence, or pace” is on of the “four broad functional areas” 

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considered in a preliminary assessment before determining a claimant’s actual 

mental functional limitations. 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). This 

preliminary assessment is a “special technique” for evaluating mental impairments 

which is not itself a determination of a claimant’s specific work-related, mental 

functional limitations. 20 C.F.R. §§ 404.1520a, 416.920a (stating that a claimant’s 

actual mental RFC is assessed later, if necessary. A hypothetical question to a VE 

must still account for limitations in concentration, persistence, and pace identified 

during the special technique. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 

1180-81 (11th Cir. 2011). However, where “medical evidence demonstrates that a 

claimant can engage in simple routine tasks or unskilled work despite limitations in 

concentration, persistence, and pace, courts have concluded that limiting the 

hypothetical to include only unskilled work sufficiently accounts for such limitations. 

Id. Here, the ALJ factored [Plaintiff’s] mild to moderate pain into the assessment [of 

functional limitations],” and also found that Plaintiff’s pain “could occasionally 

interfere with concentration, persistence, and pace.” R. 25, 35. The ALJ still found 

Plaintiff was able to do simple, unskilled, repetitive work. R. 57.

The ALJ’s hypothetical question was limited to the commercial cleaner 

position, which was unskilled work, so the question adequately accounted for 

Plaintiff’s concentration, persistence, and pace limitations. See Winschel, 631 F.3d at 

1180-81.

C. The ALJ properly considered the treating physician’s opinion 

regarding Plaintiff’s pain and medication side effects.

Finally, the Plaintiff argues that the ALJ improperly rejected the opinion of 

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the treating physician, Huey Kidd, D.O., regarding Plaintiff’s pain and medication 

side effects. Doc. 12 at 14. Dr. Kidd issued two separate opinions regarding 

Plaintiff’s functional limitations, one in August 2012 (R. 578-85) and one in 

December 2012. R. 602-05. The opinion of a treating physician, such as Dr. Kidd, is 

generally entitled to substantial or considerable weight, absent “good cause.” See, 

e.g., Winschel, 631 F.3d at 1179; see also 20 C.F.R. § 404.1527. “Good cause exists 

‘when the: (1) treating physician’s opinion was not bolstered by the evidence; (2) 

evidence supported a contrary finding; or (3) treating physician’s opinion was 

conclusory or inconsistent with the doctor’s own medical records.’ ” Winschel, 631 

F.3d at 1179 citing Phillips, 357 F.3d at 1241. “With good cause, an ALJ may 

disregard a treating physician’s opinion, but he ‘must clearly articulate [the] 

reasons’ for doing so. Id.

The ALJ concluded that Dr. Kidd’s December 2012 evaluation contradicted 

his own August 2012 evaluation, despite the fact that Dr. Kidd did not indicate any 

re-examination of Plaintiff in the intervening period. R. 31-32. The ALJ chose to 

accept the August 2012 evaluation, but not the contradicting December 2012 

evaluation. R. 32. The contradiction represented “good cause” to disregard the 

second evaluation. See Winschel, 631 F.3d at 1179. The ALJ’s statement of the 

reasons for disregarding the second evaluation comport with the standard set by 

Winschel. See id. Thus, the ALJ properly considered Dr. Kidd’s evaluation of 

Plaintiff’s pain and medication side effects.

D. The ALJ relied on substantial evidence in making the RFC 

assessment and in finding that the Plaintiff could perform past work.

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Finally, the ALJ’s RFC determination, and his subsequent determination that 

the Plaintiff can perform medium work at a reduced level, included past relevant 

work, are supported by substantial evidence as required by Jones (190 F.3d at 1228) 

and Crawford (363 F.3d at 1158-59). In making the decision, the ALJ relied on the 

opinions, assessments, and treatment notes of Timothy Holt, M.D.; Huey Kidd, D.O.; 

Eugune T. Saiter, M.D.; and Calvin R. Johns, M.D. R. 25-36. The ALJ also relied on 

the testimony of a vocational expert, Michael C. McClanahan, Ph.D. R. 36-37. As 

required by the Eleventh Circuit, the evidence relied upon is “more than a scintilla” 

and is “such relevant evidence as a reasonable person would accept as adequate to 

support [the ALJ’s] conclusion.” See Martin v. Sullivan, 894 F. 2d 1520, 1529 (11th 

Cir. 1990) (internal citations omitted). In the last analysis, the record evidence does 

not support Plaintiff’s assignments of error. Rather, the record as a whole reflects 

that the ALJ’s decision was supported by substantial evidence.

VI. Conclusion

Accordingly, it is ORDERED that the decision of the Commissioner of Social 

Security denying Plaintiff benefits is AFFIRMED.

DONE and ORDERED this the 22nd day of February 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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