Todd Jack v. Commissioner of Social Securit

Filing

Opinion issued by court as to Appellant Todd M. Jack. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11061

Date Filed: 01/11/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11061
Non-Argument Calendar
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D.C. Docket No. 2:14-cv-00723-SPC-MRM

TODD M. JACK,
Plaintiff - Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 11, 2017)
Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:

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Todd Jack, proceeding pro se, appeals the district court’s order reversing the
Administrative Law Judge’s denial of his application for disability insurance
benefits under 42 U.S.C. § 405(g) and remanding for further administrative
proceedings. Mr. Jack argues that the district court erred by remanding the case
rather than ordering the immediate payment of benefits. After careful review of
the record and the parties’ briefs, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
In December of 2011, Mr. Jack filed an application for Social Security
disability benefits. Mr. Jack alleged that he became disabled in January of 2011
due to partial blindness in his right eye, a physical impairment involving his back,
and a psychological impairment following his service in the Navy. 1
After his initial and reconsideration applications were denied, Mr. Jack
requested a hearing before an ALJ which took place in June of 2014. The ALJ
held a video hearing and found that Mr. Jack had the following medically
determinable impairments: “presbyopia and strabismus of his eyes, with corrected
visual acuity of 20/70 in the right eye and 20/40 in the left eye.” ALJ Decision at
4. The ALJ listed the five steps in the sequential evaluation process, see 20 C.F.R.
1

Mr. Jack did not list a history of post-traumatic stress disorder in his administrative
applications; instead, he testified about his alleged PTSD for the first time before the ALJ.
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§ 404.1520(a)(4)(i)-(v), but he stopped at step two because following his review of
the record, Mr. Jack “ha[d] adequate vision in the right eye.” See ALJ Decision at
1–2. In reaching his decision, the ALJ considered Mr. Jack’s testimony, the
opinions of two treating physicians, the opinions of the state agency’s medical
consultants, and the medical record as a whole. The ALJ discounted both treating
physicians’ reports that indicated that Mr. Jack had a visual disability because the
reports were inconsistent with the doctors’ previous medical findings. The ALJ
declined to obtain an additional vision examination because the record supported a
finding that Mr. Jack was not disabled; his visual impairment was not so severe as
to interfere with basic work activities. See id. at 8.
The ALJ also decided not to obtain a psychological evaluation or list a
psychological impairment because Mr. Jack had not previously presented evidence
of PTSD or mental health treatment. Similarly, the ALJ observed that Mr. Jack’s
allegations of disabling back pain were not supported by objective medical
evidence. The ALJ noted that Mr. Jack was treated sparingly for back pain with
over-the-counter anti-inflammatory medications and four weeks of physical
therapy, that Mr. Jack had previously reported only mild back pain, and that the
record lacked objective evidence such as x-ray or MRI imaging. See id. at 4.
The ALJ did not consider whether Mr. Jack could perform any past relevant
work based on his residual functioning capacity, age, and education. Although the
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ALJ indicated that he had a vocational expert available to testify by phone, he did
not require that testimony or consider whether there are jobs in the national
economy that a person of Mr. Jack’s capacities could perform because he did not
reach step four and five of the sequential evaluation process. Accordingly, the ALJ
found that Mr. Jack was not disabled and issued an unfavorable decision.
The Appeals Council denied Mr. Jack’s request for review of the ALJ’s
unfavorable decision. Mr. Jack filed suit in the district court, and a magistrate
judge recommended that the ALJ’s unfavorable decision be affirmed as to its
findings regarding Mr. Jack’s alleged PTSD and back injury and reversed as to the
ALJ’s conclusion that Mr. Jack’s alleged visual impairment was not “severe.” By
adopting the magistrate judge’s report and recommendation, the district court
agreed that Mr. Jack’s visual limitations were not so trivial as to allow the ALJ to
end the analysis at step two of the sequential evaluation. Mr. Jack appeals the
district court’s partially favorable decision and asserts that he was entitled to an
immediate award of disability benefits.
II
When a district court remands a Social Security case “to the agency for
further proceedings, [that decision] is a ‘final judgment’ for purposes of [28
U.S.C.] § 1291 and it is, therefore, appealable.” Forney v. Apfel, 524 U.S. 266,
269 (1998). Under limited circumstances, we “may reverse the judgement of the
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district court and remand the case for an entry of an order awarding disability
benefits where the [Commissioner] has already considered the essential evidence
and it is clear that the cumulative effect of the evidence establishes disability
without any doubt.” Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993).
We have not addressed the appropriate standard of review in a case where,
as here, a district court exercises its authority to reverse and remand to the
Secretary under 42 U.S.C. § 405(g). The Seventh, Eighth, and Ninth Circuits have
determined that a district court’s decision to exercise that authority should be
reviewed for abuse of discretion. See Nelson v. Apfel, 210 F.3d 799, 801 (7th Cir.
2000); Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); Harman v. Apfel, 211
F.3d 1172, 1173 (9th Cir. 2000). The First Circuit, however, conducts de novo
review because the remedy under § 405(g) largely depends on “the type of error
made by the ALJ or Commissioner.” See Seavey v. Barnhart, 276 F.3d 1, 9 (1st
Cir. 2001). We need not address the proper standard here because, even if the
more favorable de novo standard applied, we would nevertheless affirm on the
record before us.
Generally, when an ALJ denies benefits and the Appeals Council denies
review, we review the ALJ’s decision as the Commissioner’s final decision. See
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).

We review the

Commissioner’s decision to determine if it is supported by substantial evidence,
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see Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004), and
we review de novo the district court’s decision as to whether substantial evidence
supports the Commissioner’s decision. See Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford, 363 F.3d at 1158. This limited review does not permit
“deciding the facts anew, making credibility determinations, or re-weighing the
evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
III
An ALJ follows a five-step sequential evaluation process, see 20 C.F.R.
§ 404.1520(a)(4)(i)-(v), to determine if an individual is disabled. The ALJ is
generally required to determine whether an individual (1) is performing substantial
gainful activity; (2) has a severe impairment; (3) has a severe impairment that
meets or equals a listing; (4) possesses the residual functioning capacity to perform
past relevant work; and (5) can adjust to other work in the national economy. See
id. An individual claiming disability insurance benefits has the burden of proving
that he is disabled and must show eligibility for benefits on or before his date last
insured. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Although
an individual has the burden at step two of the sequential evaluation, a hearing

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before an ALJ is not adversarial and the ALJ has a “basic obligation to develop a
full and fair record.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
A treating physician’s opinion “must be given substantial or considerable
weight unless good cause is shown to the contrary.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (internal quotation marks and citation omitted).
“Good cause” may be found when an opinion is not bolstered by the evidence,
when the evidence supports a contrary finding, or when a physician’s opinion is
“inconsistent with [his or her] own medical records.” Id.
Mr. Jack argues that the district court should have awarded the immediate
payment of benefits instead of remanding his case for further administrative
proceedings. Although Mr. Jack is correct that a district court possesses the
authority to award benefits “with or without remand” under § 405(g), an immediate
award of benefits occurs in very limited circumstances that are not present here.
Because the ALJ stopped its analysis at step two, the Commissioner has not
yet considered the essential evidence. See Davis, 985 F.2d at 534. Additionally,
on this record, it is not clear that the cumulative effect of the evidence establishes
disability without any doubt because there is conflicting evidence about the
severity of Mr. Jack’s visual impairment. See id. See also McDaniel v. Bowen,
800 F.2d 1026, 1032 (11th Cir. 1986) (cautioning against evaluating the merits of a
disability claim when an ALJ does not complete the sequential evaluation because
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it would be “an affront to the administrative process if courts were to engage in
direct fact finding in these Social Security disability cases”). Furthermore, there is
not enough evidence to determine whether Mr. Jack has the residual functioning
capacity to perform past relevant work or whether jobs exist in the national
economy that a person of Mr. Jack’s capacities could perform. Accordingly, we
decline to perform a complete review and determine the merits of Mr. Jack’s
disability claim on the incomplete administrative record here.
Like the district court, we conclude that the ALJ ended his analysis of Mr.
Jack’s visual impairment prematurely.

The ALJ relied heavily on the state

agency’s medical consultants (who are not treating physicians) and Mr. Jack’s
ability to perform basic daily activities, but he discounted the reports of two
treating physicians who agreed that Mr. Jack was visually disabled. Substantial
evidence did not support the ALJ’s disability finding at step two with respect to
Mr. Jack’s alleged visual disability. 2
IV
We affirm the district court’s order reversing the ALJ’s decision in part and
remanding for further administrative proceedings because substantial evidence did

2

We also agree, however, that substantial evidence supported the ALJ’s decision to reject Mr.
Jack’s allegations of PTSD and disabling back pain because those allegations were not supported
by the objective medical record.
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not support the ALJ’s decision to determine, at step two of the sequential
evaluation process, that Mr. Jack was not visually disabled.
AFFIRMED.

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