Bulger v. Colvin (CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER: The Court concludes that the decision of the Commissioner denying benefits to Bulger should be reversed and remanded for further proceedings consistent with this opinion. Further, it is ORDERED that, in accordance with B ergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 n.2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice ofany amount of past due benefits awarded to seek attorneys fees under 42 U.S.C. § 406(b). See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 n.1 (11th Cir. 2008). The Court will enter a separate final judgment. Signed by Honorable Judge Charles S. Coody on 9/12/2014. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIMOTHY RACINE BULGER,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CIVIL ACTION NO. 1:13-cv-127-CSC

MEMORANDUM OPINION AND ORDER
I. Introduction.
The plaintiff applied for supplemental security income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381, et seq., alleging that he was unable to work because
of a disability. His application was denied at the initial administrative level. The plaintiff
then requested and received a hearing before Administrative Law Judge (“ALJ”) Tracy S.
Guice. Following the hearing, the ALJ also denied the claim. The Appeals Council rejected
a subsequent request for review. The ALJ’s decision consequently became the final decision
of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C.

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

§§ 405 (g) and 1383(c)(3).2 Based on the court’s review of the record in this case and the
briefs of the parties, the court concludes that the decision of the Commissioner should be
reversed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.
To make this determination3 the Commissioner employs a five step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.

2

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
States Magistrate Judge.
3

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

2

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
42 U.S.C. § 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007). “Substantial evidence is more than a scintilla, but less than a preponderance. It is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). A reviewing court may not look only to
those parts of the record which supports the decision of the ALJ but instead must view the
record in its entirety and take account of evidence which detracts from the evidence relied
on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986). The court “may
not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of
the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(alteration in original) (quotation marks omitted).
[The court must, however,] . . . scrutinize the record in its entirety to determine
the reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

4

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

3

III. The Issues
A. Introduction.
Bulger was 38 years old at the time of the hearing before the ALJ and has an 11th
grade education. (R. 70). His prior work experience includes work as an orderly and a
lumber stacker. (R. 22).

Following the administrative hearing, the ALJ concluded that

Bulger has severe impairments of borderline intellectual functioning, depression, lumbar
radiculopathy, left groin sprain and hypertension. (R. 15). The ALJ also found that Bulger
had a severe impairment of “headaches,” but immediately contradicted this finding by also
concluding that Bulger’s headaches were a “non-severe impairment.” (R. 15). The ALJ
concluded that Bulger was unable to perform his past relevant work. (R. 22). Nonetheless,
the ALJ concluded that Bulger was not disabled because the plaintiff has the residual
functional capacity to perform other work that is available in the national economy.
B. The Plaintiff’s Claims. As stated by the plaintiff, his claims are
1. Whether the Commissioner’s decision should be reversed because the ALJ
failed to give great weight to the opinions of Bulger’s treating physician, Dr.
Richard Bendinger.
2. Whether the Commissioner’s decision should be reversed because the
ALJ’s finding that Bulger is capable of performing light work is not supported
by substantial evidence.
3. Whether the Commissioner’s decision should be reversed because, prior to
relying on the VE’s testimony, the ALJ failed to explain an inconsistency
between the VE’s testimony and the Dictionary of Occupational Titles.
In this case, the ALJ’s opinion is so comprehensively infected with legal error and

4

misstatements of the record that it is not possible to consider the first two issues raised by the
plaintiff separately from many of the other glaringly-obvious fatal deficiencies in the ALJ’s
determination of Bulger’s residual functional capacity. Accordingly, by necessity, the court
will address the first two issues raised by the plaintiff within the context of its consideration
of the ALJ’s opinion and the record as a whole. See Powell v. Heckler, 773 F.2d 1572, 1575
(11th Cir. 1985) (holding that the presumption of deference to the Commissioner’s factual
findings “does not permit [the court] to close [its] eyes when presented with clear error in the
application of the governing statute, or with evidence insubstantial on its face”); see also
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (citations omitted) (holding that,
although the court’s review of the Commissioner’s findings of fact is limited to determining
whether those findings are supported by substantial evidence, the reviewing court has the
duty to “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner’s] factual findings”); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986)
(“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 Secretary’s decision.”).
Further, because the court’s consideration of the first two issues lead to the conclusion
that this case must be reversed, the court pretermits consideration of the third issue raised by
the plaintiff.
IV. Discussion
A disability claimant bears the initial burden of demonstrating an inability to return

5

to his past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether
the claimant has satisfied this burden, the Commissioner is guided by four factors: (1)
objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3)
subjective evidence of pain and disability, e.g., the testimony of the claimant and his family
or friends; and (4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720
F.2d 1251 (11th Cir. 1983). The ALJ must conscientiously probe into, inquire of and explore
all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v.
Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). The ALJ must also state, with sufficient
specificity, the reasons for his decision referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphases added). Within this analytical framework, the court will
address the plaintiff’s claims.
A.

Failure to Consider All Impairments When Determining Residual Functional
Capacity
At the outset, the court notes that, at step two of the sequential evaluation process, the

the ALJ found that Bulger’s headaches were a severe impairment, but then the ALJ
proceeded to state that she found Bulger’s headaches were not a severe impairment. (R. 15)
These findings are erroneous because, as a matter of law, a single impairment cannot
simultaneously be both severe and non-severe. See 20 C.F.R. 416.920(c) (providing that “an
6

impairment or combination of impairments” is a “severe impairment” if it “significantly
limits your physical or mental ability to do basic work activities”); 20 C.F.R. § 416.921(a)
(“An impairment or combination of impairments is not severe if it does not significantly limit
your physical or mental ability to do basic work activities.”).
Further, the record does not support the reasons given by the ALJ for finding that
Bulger’s headaches were a non-severe impairment. The ALJ’s explanation for this finding
was as follows:
With regard to the claimant’s alleged headaches, the Administrative Law
Judge notes that there is only one treatment record with regard to that
allegation. The Administrative Law Judge notes that that [sic] record indicated
the claimant was in no acute or respiratory distress. The diagnosis on that date
was tension headache. The Administrative Law Judge does note that a
subsequent office note on January 23, 2011 stated “no refill” and there is no
indication that the claimant presented for any further follow up with regard to
his headaches (Exhibit 6-F). Therefore, the claimant's allegation of headaches
is determined to be a non-severe impairment because follow up treatment is
not noted in the record.
(R. 15).
The record reflects that, on September 18, 2010, Dr. Kelley treated Bulger for a
headache. (R. 281). As observed by the ALJ, Dr. Kelley noted that Bulger was in “no acute
distress or respiratory distress” (R. 281). However, nothing else in the ALJ’s explanation
correctly represents the record regarding Bulger’s headaches. Although Bulger was not in
acute or respiratory distress, Dr. Kelley noted that Bulger reported that he hurt all over, that
the headache had caused “nausea and vomiting over the past couple of days” and that Bulger
had a history of migraine headaches. (R. 281). Treatment notes also indicated that Bulger
7

reported fatigue and dizziness with the headache. (R. 281). Bulger’s blood pressure at the
time of the office visit was 118/85. (R. 281). Dr. Kelley diagnosed the headache as a tension
headache and prescribed Toradol, Flexiril, and Lortab.
Shortly thereafter, on September 30, 2010, Dr. Richard Bendinger treated Bulger
again for a headache. Specifically, Bulger presented with a complaint that he had a headache
that had begun on September 28, 2010 that was so severe that he passed out. (R 285).
Bulger was not sure whether he fell and hit his chest when he passed out, but his chest hurt
and his head also still ached. (R. 285). His blood pressure at that time was 170/112. (R.
285). Dr. Bendinger noted that Bulger had “uncontrolled hypertension,” which he diagnosed
as being “secondary to pain.” (R. 285). A chest X-ray was normal, and Dr. Bendinger noted
that he would order a CT scan for further testing regarding the headaches. (R. 285). Several
medications were prescribed, including Prednisone, although the notes regarding other
prescriptions are illegible. (R. 285).
Another undated handwritten note on Dr. Kelley’s medical record of the September
18, 2010, office visit indicates that, at some point prior to January 23, 2011, Bulger was
prescribed Thoradol and Fiorinal, and the prescribed dosages of each medication were also
noted. (R. 215). Subsequently, on January 23, 2011, Dr. Kelley did not write “no refill” on
his notes; rather, he wrote “rx refill Fiorinal” with the same dosage indications by this note
as were on the earlier note regarding the Fiorinal prescription. (R. 215). If anything, the fact
that Bulger had his Fiorinal prescription refilled is evidence that he did fill and take the

8

prescription.
The court notes that, on January 24, 2011, on a medical records update form, Bulger
reported to the Commissioner that he was taking Piroxicam (prescribed by Dr. Bendinger for
inflamation), Butalbital ASP Caffiene Capsule (prescribed by Dr. Kelley for migraines), and
Cyclodeuzaprine (prescribed by Dr. Kelley for muscle spasms.). He also stated that he took
the following nonprescription medications: Excedrine Migraine for headaches, Excedrine
Tension for headaches, Tylenol Extra Strength for pain, and an acid reducer for acid reflux
and heartburn. Dr. Bendginger’s notes dated January 31, 2011, indicate that he diagnosed
Bulger with trigemenal autonomic cephalgia (severe headaches). (R. 294).
At the April 13, 2011, hearing, Bulger testified that he was not taking prescription
medication for his headaches at that time. However, he stated that he had the name of his
headache prescription with him and that he had recently attempted to get the prescription
refilled but was financially unable to do so. That exchange was as follows:
ALJ: Okay. Headaches. You have problems with headaches?
Bulger: Yes, ma'am.
ALJ: You taking medication for that?
Bulger: I had a -- I can’t think of the name. I got it right here, though.
ALJ: You have some medication for that? Do you take it every day?
Bulger: I did before I ran out and I can’t afford to get that on [sic] prescription
re-did.
ALJ: Have you tried to take your prescriptions over to Walmart to see if they
would help you with any prescriptions?
Bulger: Yes. That's where it’s at.
ALJ: Okay. And how much is that prescription to fill it?
Bulger: $42.00.
ALJ: Even under the prescription–
Bulger: Yes.
9

ALJ: Have you talked to your physician about that? Has he provided you with
any samples?
Bulger: Not that, because I can’t take the pain medicine because it had my
chest hurt so he prescribed me something with less milligrams in it that caused
my chest to start hurting. I don’t know why that happened.
ALJ: What are you taking now? Are you taking mainly over-the counter
medication or-Bulger: Yes, over the counter right now until I can get that -- like Excedrin -tension and -ALJ: How often do you have headaches?
Bulger: Like I got one right now.
ALJ: How many times a week would you say you had a headache?
Bulger: I'd say about just -- a mild headache is at least about five, six days a
week.
....
ALJ: What about the headache pain? Where would you rate that on the pain
scale?
Bulger: As a five, six.
ALJ: Is that with medication?
Bulger: Yes.
(R. 74-76).
Thus, at step two of the sequential evaluation process, the ALJ completely ignored
both the medical record and Bulger’s testimony showing unequivocally that his headache
prescriptions had not been discontinued by his doctors. Instead, the ALJ misquoted the record
to suggest that Dr. Kelley had decided not to refill those prescriptions.
Moreover, to the extent that Bulger stopped taking prescription headache medication
sometime between January, 2011 and the April 13, 2011 hearing before the ALJ, his stated
reason for doing so was not that the medication was no longer necessary or prescribed, but
that he could not afford the medication. Thus, poverty was the only reason reflected in the
record for Bulger’s failure to seek more treatment for his headaches and for the fact that he
10

did not refill his prescription for headache medication. “To a poor person, a medicine that
he cannot afford to buy does not exist.” Dawkins v. Bowen, 848 F.2d 1211,1213 (11th Cir.
1988) (quoting Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987). However, at step two
of the sequential evaluation process, in negating Bulger’s testimony about the severity of his
headaches solely on the basis of a record of discontinued treatment, the ALJ completely
failed to address Bulger’s testimony that he could not afford his prescription headache
medication; rather, contrary to everything in the record on the topic, she clearly implied that
he did not have any headache prescriptions to refill in the first place because Dr. Kelley had
written down “no refill” (which, in fact, he never wrote) and because Bulger had not sought
treatment for his headaches after September 18, 2010 (which, in fact, he had). Accordingly,
the ALJ’s explanation for dismissing the severity of Bulger’s headaches due to discontinued
treatment is both unsupported by the record and contrary to the well-established law in this
Circuit. See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). (“[W]hen an ALJ
relies on noncompliance as the sole ground for the denial of disability benefits, and the
record contains evidence showing that the claimant is financially unable to comply with
prescribed treatment, the ALJ is required to determine whether the claimant was able to
afford the prescribed treatment.”); Swindle v. Sullivan, 914 F.2d 222, 223 (11th Cir. 1990)
holding that the decision of an ALJ must be reversed when that decision is not supported by
substantial evidence).
Of course, the ALJ’s total failure to reach any meaningful or factually-supported

11

decision on whether Bulger’s headaches were severe or non-severe and her simultaneous
legal errors and absolute misstatement of the record in dismissing the severity of those
headaches would be merely “harmless” errors if not for the fact that these errors clearly
carried over into her determination of Bulger’s residual functional capacity. See Griffin v.
Comm’r of Soc. Sec., 560 Fed. Appx. 837, 842 (11th Cir. 2014) (holding that an ALJ’s
failure to find tinnitus to be a severe impairment was, at most, harmless error because the
ALJ nevertheless considered the severity and limiting effects of the claimant’s tinnitus at
subsequent steps in the sequential evaluation process). At step four of the sequential
evaluation process, the ALJ repeated her misstatement regarding the extent of Bulger’s
treatment for headaches and her misstatement that Dr. Kelley discontinued refills of Bulger’s
prescription. (R. 19-20). The ALJ again failed to recognize that Dr. Bendinger treated Bulger
for headaches in September 2010 and diagnosed trigeminal autonomic cephalgia in January
2011. (R. 20; 294). Thus, at step four of the evaluation process, when the ALJ repeated the
errors made at step two of the sequential evaluation process regarding Bulger’s impairment
of headaches, she erred by failing to consider all of the relevant evidence and by failing to
follow the proper applicable legal standards in forming her residual functional capacity
determination. 20 C.F.R. § 416.945 (a)(1) (“We will assess your residual functional capacity
based on all the relevant evidence in your case record.”).
Further, it is clear that, at step two of the sequential evaluation process, the ALJ
determined that Bulger’s headaches were a medically-determinable “impairment;” what is

12

not clear is whether she found that impairment to be severe or non-severe. (R. 15). In either
case, however, the ALJ was required to consider Bulger’s headaches at step four in
determining his residual functional capacity. 20 CFR § 416.945(a)(2) (“We will consider
all of your medically determinable impairments of which we are aware, including your
medically determinable impairments that are not ‘severe,’ . . . when we assess your residual
functional capacity.”). However, at step four of the sequential evaluation process, although
the ALJ mentioned Bulger’s complaints headaches in passing, the ALJ specifically listed the
following impairments as those that formed the basis of her determination of Bulger’s
residual functional capacity: “borderline intellectual functioning, depression, lumbar
radiculopathy, hypertension, back and groin pain.” (R. 20). Thus, the ALJ did not follow
the correct legal standard in determining Bulger’s residual functional capacity because she
did not consider Bulger’s medically-determinable impairment of headaches at all in making
that determination. 20 CFR § 416.945(a)(2); Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir.
1986) (holding that an the ALJ must consider the disabling effects of “every impairment,”
singly and in combination with other impairments)
B.

Numerous Errors in Rejecting Bulger’s Subjective Pain Testimony
The ALJ “must consider a claimant’s subjective testimony of pain if she finds

evidence of an underlying medical condition, and either (1) objective medical evidence to
confirm the severity of the alleged pain arising from that condition, or (2) that the objectively
determined medical condition is of a severity that can reasonably be expected to give rise to

13

the alleged pain.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). “If the ALJ
refuse[s] to credit subjective pain testimony where such testimony is critical, he must
articulate specific reasons for questioning the claimant’s credibility.” Marbury v. Sullivan,
957 F.2d 837, 839 (11th Cir. 1992). The ALJ may reject the claimant’s complaints of pain,
as not creditable, “and that determination will be reviewed for substantial evidence.” Id.
In this case, the ALJ found that Bulger did have medically determinable impairments
that “could reasonably be expected to cause the alleged symptoms;” however, she did not
find Bulger’s subjective testimony credible for three basic reasons: she found that the
medical record was “sparse” and, based on misrepresentations of the objective findings
contained in that record, she concluded that those findings were essentially normal (R. 21);
in relying on the sparsity of the medical record, she dismissed Bulger’s allegations of poverty
without adequately developing the record and completely overlooked relevant record
evidence (R. 21); and she discounted Bulger’s reports of pain due to physical impairments
because she found that an April 14, 2009 consulting examination conflicted with relatively
more recent treatment records and opinions of Bulger’s treating physician, while overlooking
relevant contents of the treating physician’s records (R. 20).
1.

Misrepresentation of Clinical Findings and Objective Diagnositive Evidence as
“Often” Yielding “Normal or Minimally Abnormal” Findings
The ALJ dismissed Bulger’s subjective testimony partly on the basis of the following

findings:
[T]he claimant’s clinical examination findings have often been found to be
14

normal or minimally abnormal, and the objective diagnostic evidence of record
has been sparse. As stated above, all x-rays were essentially within normal
limits. In addition, range of motion was grossly normal in both upper and
lower extremities.
(R. 21).
First, aside from the specific examples provided in the quoted paragraph, it is not clear
from the ALJ’s opinion which examinations she deemed were “often . . . normal or
minimally abnormal.”

In light of the record as a whole, the statement that “clinical

examination findings have often been found to be normal or minimally abnormal” makes no
sense. It is undisputed that the medical record is “sparse” because Bulger did not seek
treatment often; therefore, clinical examinations have not “often” yielded findings of any
kind, normal or otherwise.
Further, the clinical examination findings specifically referenced by the ALJ are not
“normal or minimally abnormal” as the ALJ portrays them. For example, the ALJ states that,
“as stated above, all X-rays were essentially within normal limits.” (R. 21). Earlier in her
opinion, the ALJ stated: “X-rays of the lumbrosacral spine were essentially within normal
limits.” (R. 18). However, Bulger’s April 14, 2009 X-ray report reads as follows:
THREE VIEWS OF THE LUMBROSACRAL SPINE: [T]he vertebral body
heights and disc spaces appear to be well maintained. A deformity at the
superior border anteriorly in L2 is seen compatible with remote trauma or
possible nonfused apophysis. No osseous lesion is seen otherwise alignment
appears normal.
IMPRESSION: Findings at L2 as described, likely secondary to remote
trauma, although nonfused apophysis is also a possibility. The examination
appears otherwise essentially within normal limits.
15

(R. 263).
Thus, except for findings of a deformity that was likely secondary to remote trauma,
the X-ray was “otherwise essentially within normal limits.” (R. 263 (emphasis added)). The
problem, of course, is that Bulger’s lower back pain was one of his medically-determinable
impairments, and he stopped working in part because he injured his back. (R. 254). Thus,
there is absolutely no excuse for the ALJ’s utter failure to address or even acknowledge the
only objective medical finding from the X-ray, which objectively confirmed that Bulger had
suffered a back injury. (R.2 63). See 20 C.F.R. 416(a) (“In evaluating the intensity and
persistence of your symptoms, including pain, we will consider all of the available evidence,
including . . . the medical signs and laboratory findings.” (Emphasis added)). Obviously in
this context, the fact that the X-ray was “otherwise essentially . . . normal” does not negate
the one highly-relevant objective finding of an abnormality that indicated a back injury.
Bulger did not complain of other back-related issues; thus, one would expect the X-ray of his
back to be “otherwise essentially within normal limits.” Thus, the record simply does not
support the ALJ’s dismissal of Bulger’s subjective pain testimony based on her finding that
the X-ray of Bulger’s back was “essentially within normal limits.”
Further, although Dr. Bendinger found during the April 14, 2009 examination that
“range of motion was grossly normal in both upper and lower extremities,” (R.21, 256), the
ALJ overlooked the fact that Dr. Bendinger’s April 2009 report also stated that Bulger “has
full range of motion but does have some tenderness and pain with range of motion especially

16

in the lumbar spine.” (R. 257, 258). Dr. Bendinger’s “only significant [clinical] findings”
on April 14, 2009 “revealed lumbrosacral area paravertebral muscle tenderness and left groin
tenderness, which appeared to be significant to palpation.” (R. 256). The ALJ herself found
it “extremely significant” that Dr. Bendinger concluded in his April 14, 2009 report that
Bulger’s “ability to do work-related activities such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking and traveling to be relatively unimpaired with
the exception of the chronic pain in his left groin.” (R. 20 (emphasis added); R. 256).
Further, the ALJ misrepresented the X-ray taken in conjunction with the April 2009
examination as “essentially within normal limits” when the X-ray in fact revealed an
abnormality consistent with Bulger’s complaints of pain. Under the circumstances, the lone
finding in April 2009 that Bulger’s range of motion was “grossly normal” – a single
purportedly “essentially normal” finding the ALJ plucked out of context from Dr.
Bendinger’s written four-page report based on a single consultative examination in April
2009 – is not substantial evidence to support the ALJ’s characterization that “clinical
examination findings” (plural) “have often been found to be normal or minimally abnormal.”
(R. 263). See Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (holding that, although
the court’s review of the Commissioner’s findings of fact is limited to determining whether
those findings are supported by substantial evidence, the reviewing court has the duty to
“scrutinize the record in its entirety to determine the reasonableness of the [Commissioner’s]
factual findings”).

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2.

Bulger’s Failure to Seek or Comply With Treatment and Allegations of Poverty
In dismissing Bulger’s allegations of pain, and throughout her opinion,5 the ALJ relied

significantly on the scarcity (or alleged absence6 ) of objective medical evidence, and on the
fact Bulger did not seek more extensive medical treatment. (See, e.g., R. 21). However, as
the ALJ recognized (R. 21), Bulger alleged that his failure to seek more frequent treatment
and his failure to comply with his prescribed treatment was due to his poverty. (R. 21).
Therefore, before rejecting Bulger’s subjective testimony of pain, the ALJ was required to
consider whether poverty, not lack of medical necessity, was the cause of Bulger’s infrequent
treatment, his failure to comply with prescribed treatment, and the lack of more extensive
medical evidence. See Marbury, 957 F.2d at 839 (holding that, where, as here, the ALJ finds
that the claimant has an objectively-determined medical impairment that could reasonably
give rise to the claimant’s subjective allegations of pain, the ALJ must consider the
credibility of the claimant’s subjective testimony, and the ALJ’s stated reasons for rejecting
that testimony must be supported by substantial evidence); see also Ellison, 355 F.3d at 1275
(holding that, when lack of medical treatment is a primary ground for finding that a claimant

5

For example, in discounting Bulger’s subjective testimony, the ALJ “specifically” noted the
consulting psychologist’s statement that the prognosis for Bulger’s depression was “contingent on his
physical complaints, primarily pain,” and that “a physician should be consulted with regard to his prognosis.”
(R. 275, 21-22). Thus, the ALJ discounted not only Bulger’s subjective testimony regarding the severity of
pain due to his physical ailments, but also the limiting effects of his depression, on the theory that Bulger’s
pain would subside with treatment for his physical complaints.
6

It is undisputed that the medical record is not extensive. The court notes, however, that the medical
record is not quite as sparse as the ALJ represented it to be; as explained throughout this opinion, the ALJ
clearly overlooked certain relevant medical records entirely.

18

is not disabled, and the record contains evidence showing that the claimant is financially
unable to comply with prescribed treatment, the ALJ is required to determine whether the
claimant was able to afford the treatment).
In this case, the ALJ found that Bulger’s claims of poverty were inexcusable and that
the lack of more extensive treatment and the failure to comply with prescribed treatment
constituted evidence that undermined the credibility of his subjective testimony. (R. 21).
She offered the following reasons for these conclusions:
Nothing in the record suggests that the claimant’s physical and/or mental
impairments have been incapable of being alleviated or controlled with the
proper and regular use of prescription and/or over-the-counter medications.
In fact, the claimant reported that he was not taking any medication. It would
seem that the claimant would ask his treating physicians for medication if his
pain is as bad as he has reported it to be.
The undersigned recognizes the paucity of medical evidence in this case, and
she specifically acknowledges the overall lack of persistent and regular
treatment and the lack of recent medical documentation of visits to physicians.
It is reasonable to assume that if the claimant were experiencing physical
and/or mental difficulties to a disabling degree, he would have presented to his
physicians for ongoing treatment.
As an excuse for his failure to seek treatment, the claimant has alleged that he
is financially unable to afford to do so. However, the undersigned is not
persuaded by the claimant’s allegations that he has been financially unable to
obtain medical treatment. Social Security Rulings 87-96 and 82-59 provide
that a claim of financial inability to obtain prescribed treatment is only a
justifiable cause for failure to follow the prescribed treatment when free
community resources are unavailable. It is well-established that community
clinics exist in the local area of the claimant’s residence that offer both
reduced cost and free medical treatment for indigent people. Nevertheless,
there is no evidence that the claimant sought treatment from any of these
facilities, or that he has even inquired about the availability of such treatment.

19

(R. 21).
The ALJ’s explanation is rife with factual and legal errors. For instance, although
Bulger reported to Dr. Bendinger in April 2009 that he was not “currently” taking any
medication at that time despite his pain (R. 254), the record is replete with evidence that
Bulger did take medication both before and after that date, including narcotics and muscle
relaxers, and that, when he could not afford prescription medication, he took over-thecounter medication for pain. (R. 219, 237, 240, 242, 245, 281, 285, 293, 295, 296). The
most recent medical record from Bulger’s treating physician, dated January 31, 2011, states
that Bulger “is currently being treated with muscle relaxers and ste[r]oids, cephadyn.” (R.
293). The court notes that, when the ALJ asked Bulger at the April 13, 2011 hearing if Dr.
Bendinger “ha[d] [Bulger] on any medication,” Bulger replied “not right now.” (R. 72). In
the context of the administrative hearing, however, this does not amount to a statement that
he “was not taking any medication” (R. 21). In fact, the ALJ noted: “You brought some
medication in a bag with you today. What is that medication?” (R. 74). Bulger explained
that the medication was for his groin pain, his back pain, and a recent chest injury. (R. 74).
He also testified that he recently had taken prescription medication for his headaches until
his prescription ran out and he could not afford to get it refilled. (R. 74). In sum, there is no
support in the record for the ALJ’s findings that Bulger was “not taking any medication” and
that he had not “ask[ed] his treating physicians for medication.” (R. 21).
Further, the ALJ’s rejection of Bulger’s allegation that he was too poor to afford

20

treatment is also flawed. (R. 21). Bulger lost his home due to lack of income and his wife
subsequently left him. (R. 274). Bulger’s driver’s license is suspended because he cannot
pay child support for his two children. (R. 77). He testified at the hearing before the ALJ
and also stated on several agency forms that he could not afford his prescription medication.
(R. 75, 237, 240, 242). In fact, the ALJ did not find that Bulger could afford to pay for
treatment or prescription medication. (R. 21). Rather, she found that his inability to afford
treatment was not a justifiable cause for failure to seek and comply with treatment because
“[i]t is well-established that free community resources exist in the local area of the claimant’s
residence” and “there is no evidence” that Bulger sought “or even inquired about the
availability of” free or reduced-cost medical treatment. (R. 21). As the ALJ recognized, a
claim of financial inability to obtain prescribed treatment is only a justifiable cause for failure
to follow the prescribed treatment when free community resources are unavailable. (R. 21).
See Dawkins, 848 F.2d at 1213 (“We agree with every circuit that has considered the issue
that poverty excuses noncompliance.”).
However, the judicially-noticed existence of unnamed “free clinics in the area of the
claimant’s residence” combined with the observation that the claimant never happened to
mention of those resources is not substantial evidence of unjustified compliance. Absence
of evidence that Bulger attempted to use a free clinic does not equate to evidence of absence
of any such attempt, particularly where the Commissioner bears the burden to develop that
evidence and utterly fails to do so.

“The burden of producing evidence concerning

21

unjustified noncompliance is on the [Commissioner].” Dawkins, 848 F.2d at 1214 n.8; see
also Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (citing Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir.1981) (“[B]ecause a hearing before an ALJ is not an adversary
proceeding, the ALJ has a basic obligation to develop a full and fair record.”).
SSR 82-59,7 upon which the ALJ relied in dismissing Bulger’s claims of poverty,
provides:
Where the treating source has prescribed treatment clearly expected to restore
ability to engage in any SGA (or gainful activity, as appropriate), but the
disabled individual is not undergoing such treatment, appropriate development
must be made to resolve whether the claimant or beneficiary is justifiably
failing to undergo the treatment prescribed.
Development With the Claimant or Beneficiary--The claimant or beneficiary
should be given an opportunity to fully express the specific reason(s) for not
following the prescribed treatment. Detailed questioning may be needed to
identify and clarify the essential factors of refusal.
....
Under circumstances such as those described below, an individual’s failure to
follow prescribed treatment will be generally accepted as “justifiable” and,
therefore, such “failure” would not preclude a finding of “disability” or that
disability continues.
....
The individual is unable to afford prescribed treatment which he or she is

7

The ALJ stated that “Social Security Rulings 87-6 and 82-59 provide that a claim of financial
inability to obtain prescribed treatment is only a justifiable cause for failure to follow the prescribed
treatment when free community resources are unavailable.” (R. 21). SSR 87-6 pertains to “The Role of
Prescribed Treatment in the Evaluation of Epilepsy” and does not include any meaningful discussion of
poverty as a justified cause for failure to follow prescribed treatment. Bulger does not have epilepsy, and
it is not clear why the ALJ relied on SSR 87-6.

22

willing to accept, but for which free community resources are unavailable.
Although a free or subsidized source of treatment is often available, the claim
may be allowed where such treatment is not reasonably available in the local
community. All possible resources (e.g., clinics, charitable and public
assistance agencies, etc.), must be explored. Contacts with such resources and
the claimant's financial circumstances must be documented. Where treatment
is not available, the case will be referred to VR.
SSR 82-59, 1982 WL 31384 (emphasis in original).
In this case, the ALJ asked one question about the availability of free or reduced-cost
resources, although that question had nothing to do with the availability or use of “free
clinics” which formed the sole basis for her dismissal of Bulger’s allegations of poverty.
Specifically, the ALJ asked whether Bulger had attempted to use an assistance program at
the Wal-Mart pharmacy so that he could afford to refill his prescription headache medicine.
He testified that he had attempted to do so and that, even with that assistance, he could not
afford the medication because it would cost him $42.00. (R. 74-75). Thus, to the extent that
the ALJ made any effort to ascertain whether Bulger had attempted to use available
community resources, the evidence showed that he had done so.
Although the ALJ based her hand-waving dismissal of Bulger’s allegation of poverty
on her own personal knowledge that “[i]t is well-established that community clinics exist in
the local area of the claimant’s residence that offer both reduced cost and free medical
treatment for indigent people,” (R. 21), the ALJ never asked Bulger whether he knew about
the unnamed “community clinics” in the “area of [his] residence,” whether he qualified to
use those resources, or whether he had attempted to use those resources. (R. 21). The ALJ

23

most definitely did not attempt to explore “all . . . possible resources (e.g., clinics, charitable
and public assistance agencies, etc.)” or document “contacts with such resources and the
claimant’s financial circumstances” as required by SSR 82-59. Therefore, the lack of
“evidence that the claimant sought treatment from any of these facilities, or that he has even
inquired about the availability of such treatment” does not prove anything about whether
community resources were available to Bulger or whether he had failed to avail himself of
those resources. The only thing the lack of evidence proves is that the ALJ utterly failed in
her duty to develop the record.
Further, SSR 82-59 provides that, “before a determination is made, the individual .
. . will be made informed of this fact [that the claimant does not have a good reason for
failing to follow treatment] and of its effect on eligibility for benefits.” Id. The Commissioner
is required to give the individual “an opportunity to undergo the prescribed treatment or to
show justifiable cause for failing to do so.” Id. Thus, the ALJ failed to follow SSR 82-59
when she neglected to inform Bulger about the free and reduced-cost treatment resources of
which she claimed to be aware, to offer him an opportunity to use those resources, and to
inform him about the consequences of his failure to do so. In fact, the ALJ so thoroughly
failed to comply with SSR 82-59 that there is reason to question whether she familiarized
herself with the opinion before citing it.
The court notes that, under the circumstances of this case, the ALJ’s reliance on the
lack of “evidence that the claimant sought treatment from any of these [free] facilities, or that

24

he has even inquired about the availability of such treatment” (R. 21) is particularly
egregious. In any case, failing to develop the record and shifting the burden to the claimant
with respect to evidence of unjustified compliance is legal error, see Dawkins, 848 F.2d at
1211, but the court notes that it is particularly egregious to expect a claimant whose
medically-determined impairments include borderline intelligence to do the ALJ’s job for
her, unprompted. Here, the ALJ simply assumed that just because it is “well-established”
that some sort of free or reduced-cost clinics exist somewhere in the vicinity of Bulger’s
home, that a man with borderline intelligence knew about them and qualified for them, and,
further, that he would have thought to tell the ALJ about any attempts to avail himself of
those resources without the ALJ bothering to ask. SSR 82-59 certainly does not allow for
such an assumption under any circumstances.
Accordingly, the ALJ’s stated reason for discrediting Bulger’s subjective testimony
on the basis of lack of treatment was not supported by substantial evidence and was the
product of legal error. Ellison, 355 F.3d at 1275; Marbury, 957 F.2d at 839 (11th Cir. 1992);
(11th Cir. 2003).
3.

Dr. Bendinger’s Reports
In assessing residual functional capacity, the ALJ must state with particularity the

weight given to different medical opinions and the reasons therefor. Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir. 1987). Further, the ALJ is required to accord considerable weight
to the opinions of the claimant’s treating physicians absent good cause for not doing so. Id.

25

at 279-80.
Bulger argues that the ALJ erred because substantial evidence did not support her
decision to reject the following opinions of Dr. Bendinger:
1.

Dr. Bendinger’s April 14, 2009 opinion that “the patient’s ability to do
work related activities such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking and traveling is relatively
unimpaired with the exception of the chronic pain in his back and left
groin” (R. 256);

2.

Dr. Bendinger’s February 23, 2011 responses to a physical capacities
evaluation form in which he stated that Bulger could only lift and/or
carry five to ten pounds occasionally and one to five pounds frequently,
sit two hours during an eight hour workday, stand or walk 2 hours
during an eight hour workday, rarely climb, balance, bend or stoop, and
occasionally push, pull, reach, or perform fine or gross manipulation;
and that Bulger would likely be absent from work four days per month
as a result of the “impairments of treatment” (R. 282); and

3.

Dr. Bendinger’s February 23, 2011, responses on a “clinical
assessment of pain” form in which he indicated that Bulger experienced
pain “to such an extent as to be distracting to adequate performance of
daily activities or work,” that physical activity “[g]reatly increased pain
and to such a degree as to cause distraction from tasks or total
abandonment of task,” and that “[s]ome limitations may be present”
due to the side effects of Bulger’s medications “but not to such a degree
as to create serious problems in most instances” (R. 284).

The ALJ did not reject Dr. Bendinger’s April 14, 2009 opinion that Bulger’s “ability
to do work related activities such as sitting, standing, walking, lifting, carrying, handling
objects, hearing, speaking and traveling is relatively unimpaired with the exception of the
chronic pain in his back and left groin.” (R. 20). In fact, the ALJ considered this finding to
be “extremely significant,” and the ALJ relied heavily on this statement by Dr. Bendinger as

26

a basis for rejecting both Bulger’s subjective statements of pain and the latter two of Dr.
Bendinger’s opinions listed above. (R. 20). Specifically, the ALJ stated:
The claimant, in documentation of record, has alleged borderline intellectual
functioning, depression, lumbar radiculopathy, hypertension, back and groin
pain as a basis of disability. The undersigned concludes that, while the record
contains evidence of the existence of these impairments, the objectively
demonstrable evidence of record fails to support that the claimant is as
impaired as he has alleged. The undersigned concludes that no credible
treating or consultative physician has opined that the claimant was disabled
because of any physical and/or mental condition or from any resulting
symptoms. The Administrative Law Judge specifically notes that the records
from Dr. Bendinger reflected essentially normal examinations. The
Administrative Law Judge notes that [in April 2009] Dr. Bendinger stated the
only significant findings were lumbosacral area paravertebral muscle
tenderness and left groin tenderness. The Administrative Law Judge finds it
extremely significant that [in April 2009] Dr. Bendinger found the claimant’s
ability to do work related activities such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking and traveling to be relatively
unimpaired with the exception of the chronic pain in his back and left groin.
X-rays ofthe lumbosacral spine were essentially within normal limits. The
Administrative Law Judge recognizes that [in February 2011] Dr. Bendinger
completed a physical capacities evaluation on which he indicated the claimant
could perform less than the full range of sedentary work activity. The
Administrative Law Judge does not give significant weight to that physical
capacities evaluation because it conflicts with Dr. Bendinger's own records as
well as the remainder ofthe treatment records. Specifically, it is noted that
there is no evidence to support the dramatic change in opinion offered by Dr.
Bendinger in April 2009 in Exhibit 1-F when compared to the opinions offered
by Dr. Bendinger in February 2011 in Exhibits 7-F and 8- F. Moreover, the
treatment notes from Dr. Bendinger in Exhibits 2-F, 9-F and 10-F do not
support the limitations offered referenced in February 2011.
(R. 20).
However, as noted throughout this opinion, the ALJ completely and expressly
disavowed the very existence of relevant contents of exhibits 9F and 10F. Exhibit 9F

27

included the ignored records from Dr. Bendinger’s September 30, 2010 treatment of Bulger
for headaches and uncontrolled high blood pressure secondary to pain; the overlooked
evidence that Bulger was prescribed (and took) various medications for these and other
conditions; and the completely misconstrued evidence that Bulger’s April 2014 X-ray was
“essentially within normal limits” except for the rather significant yet convenientlyoverlooked fact that the X-ray confirmed an abnormality consistent with Bulger’s lower back
injury.
Exhibit 10F, substantial portions of which the ALJ also clearly overlooked, contains
Dr. Bendinger’s evaluation of Bulger for disability in January and February 2011 and his
explanation for the opinions stated in the February 2011 disability forms (i.e., the physical
capacities evaluation and clinical evaluation of pain) (R. 292-96). Specifically, Exhibit 10F
includes such overlooked relevant evidence as Dr. Bendinger’s diagnosis of trigeminal
autonomic cephalgias, Dr. Bendinger’s statement that “in addition to his chronic back pain”
and groin pain, Bulger “has chronic headaches >3 times per week [and] poorly controlled
blood pressure,” all of which “make it difficult to climb, lift, carry, sit for long periods of
time,” that Bulger “is currently being treated with muscle relaxers and steroids, cephadyn,”
and that, on January 31, 2011, Bulger’s blood pressure was 190/124. Thus, when Bulger was
referred to Dr. Bendinger in 2009, his allegedly disabling impairments were back pain and
groin pain (R. 254), but, at the time of the ALJ’s opinion, he also had undisputed additional
impairments of headaches and hypertension for which he had been treated and diagnosed

28

after April 2009, as documented in Exhibit 9F and 10F.
Further, although the ALJ found (and the parties do not dispute) that Dr. Bendinger
was Bulger’s treating physician, he was not Bulger’s treating physician on April 14, 2009.
April 14, 2009 was the first time (or the first time in at least three years)8 that Dr. Bendinger
treated Bulger; thus, at that time, Dr. Bendinger “did not have[] an ongoing treatment
relationship with [Bulger].” 20 C.F.R. § 404.1502. As the ALJ recognized 9 (R. 18), Dr.
Bendinger performed the April 14, 2009 examination as a consultative examiner for the
Commissioner. (R. 18, 253). Therefore, by definition, on April 14, 2009, Dr. Bendinger was
8

There is some evidence that Dr. Bendinger treated Bulger in 2006 after his initial back injury. (E.g.,
R. 237). However, medical records of Bulger’s initial back injury are not included in this record, and there
is no medical record indicating that Dr. Bendinger treated or evaluated Bulger at any time between 2006 and
April 2009. In April 2010 and January 2011 (R. 237; R. 245), Bulger indicated that he had been taking
Piroxicam consistently for inflamation and groin pain since 2006, which Dr. Bendinger had prescribed, but
this statement is not consistent with Dr. Bendinger’s records, and the inconsistency is not capable of
resolution on the present record. Thus, there is no evidence that Dr. Bendinger was Bulger’s treating
physician prior to April 2009. See 20 C.F.R. § 404.1502 (“We may consider an acceptable medical source
who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your
treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s)”).
9

The ALJ stated that “Dr. Bendinger conducted a consultative examination of the claimant on
September 28, 2010 at the request of the Social Security Administration.” (R. 18). This statement contains
an error as to the date of the consultative examination; the record establishes that Dr. Bendinger performed
the consultative examination on April 14, 2009. (R. 253-54, 258, 260-63, 269). Dr. Bendinger did treat
Bulger for headaches and uncontrolled blood pressure secondary to pain on September 30, 2010, (R. 285)
but, as explained in section IV.A. of this opinion, the ALJ completely ignored the existence of the treatment
record dated September 30, 2010. Elsewhere in her opinion, the ALJ appears to recognize that Dr.
Bendinger’s consultative examination took place in April 2009. (R. 20).
The court has not found any record of a consultative or any other examination performed by Dr.
Bendinger on September 28, 2010. Given this and the many other inconsistencies between the ALJ’s
statements of the contents of the medical records and the actual contents of those records, the court has
attempted to resolve its own lingering suspicion that the ALJ was not in fact looking at the same record as
is before this court. After reviewing the record and the opinion of the ALJ at length, however, the court has
concluded that the ALJ was indeed looking at the same record, but simply failed to see what she was looking
at. If, however, any relevant medical records are missing (such as a consultative examination dated
September 28, 2010 or medical records of Bulger’s initial back injury in 2006), the court expects that the
problem will be remedied on remand.

29

not Bulger’s treating physician, but a “nontreating physician.” 20 C.F.R. § 404.1502. His
opinion that Bulger’s “ability to do work related activities such as sitting, standing, walking,
lifting, carrying, handling objects, hearing, speaking and traveling is relatively unimpaired
with the exception of the chronic pain in his back and left groin” was not the medical opinion
of a treating physician. 20 C.F.R. § 404.1502.
However, as documented in Exhibits 9F and 10F, Dr. Bendinger treated Bulger on
several occasions and it is not disputed that, by the date of the ALJ’s opinion, he was
Bulger’s treating physician. During the time in which Dr. Bendinger became Bulger’s
treating physician, he treated and diagnosed impairments which were not present during the
April 2009 examination10 (headaches and high blood pressure), and he subsequently revised
his opinions about Bulger’s disabilities based on the fact that Bulger suffered from headaches
and high blood pressure in addition lower back and groin pain (R. 292). Nevertheless, the
ALJ clearly chose to credit the consultative report of a nontreating physician (Dr.
Bendinger’s April 2009 report) over the subsequent opinions and treatment records
developed by Bulger’s treating physician, and she did so without good cause and without
acknowledging the greater weight due Dr. Bendinger’s later records in his capacity as
treating physician. This was legal error. 20 C.F.R. § 404.1527(c)(2) (“Generally, we give
more weight to opinions from your treating sources, since these sources are likely to be the

10

During the April 2009 examination, Bulger’s chief complaints were groin and back pain due to an
on-the job injury. He denied having hypertension (R. 254) and was not diagnosed with hypertension (R. 256)
although his blood pressure was 146/90 (R. 255). He did not complain of headaches.

30

medical professionals most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.”); Lewis, 125 F.3d
at 1441 (recognizing that the opinion of a treating physician must be accepted absent good
cause to the contrary).
The law does not necessarily require the ALJ to accept the validity of Dr. Bendinger’s
post-April 2009 findings, treatment records, and opinions, but it does require that, in
determining Bulger’s residual functional capacity and in evaluating the credibility of
Bulger’s allegations of pain, she must consider all the relevant evidence in the case record,
and she must specifically state “good cause” for rejecting the medical opinions of a treating
physician. 20 CFR § 404.1545(a)(1); 20 CFR § 416.929(c)(1); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). The ALJ cannot simply close her eyes to the relevant portions
of Dr. Bendinger’s records in Exhibit 9F and 10F, which document events that occurred after
April 14, 2009 (including treatment for headaches and high blood pressure and the
establishment of a treating physician relationship), and then declare that there is “no
evidence” in Exhibit 9F or 10F indicating that anything occurred between April 14, 2009 and
February 2011 that could have caused Dr. Bendinger to revise his diagnoses and opinions or
to find that Bulger suffered from anything more than lower back and groin pain. Neither can
the ALJ ignore those records from Dr. Bendinger in Exhibit 9F and 10F that do not “reflect[]

31

essentially normal examinations” and then declare that Dr. Bendinger’s examinations were
all “essentially normal” (R. 20). Accordingly, the ALJ erred as a matter of law, and the
reasons stated in her opinion were not supported by substantial evidence, when she credited
Dr. Bendinger’s April 2009 consultative report while disregarding, misstating, and ignoring
relevant portions of Dr. Bendinger’s subsequent treatment records, clinical findings, and
opinions.
V. Conclusion
Accordingly, the court concludes that the decision of the Commissioner denying
benefits to Bulger should be reversed and remanded for further proceedings consistent with
this opinion.
Further, it is
ORDERED that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273,
1278 n.2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice of
any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C. § 406(b).
See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 n.1 (11th Cir. 2008).
The Court will enter a separate final judgment.
Done this 12th day of September, 2014.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

32