Black v. Colvin

Filing 15

MEMORANDUM OPINION AND ORDER that this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion; further ORDERING that, in accordance with Bergen v. Commr of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11 th Cir. 2006), the plf shall have sixty (60) days after he receives notice of any amount of past due benefits awarded to seek attorneys fees under 42 U.S.C. 406(b). See also Blitch v. Astrue, 261 F. Appx. 241, 242 fn.1 (11th Cir. 2008).. Signed by Honorable Judge Terry F. Moorer on 2/3/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DONNA BLACK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 2:15-cv-150-TFM
(WO)

MEMORANDUM OPINION and ORDER
I. Introduction
In this case, the ALJ determined that a 57-year old plaintiff with disc degeneration,
sore knees, and chest pain upon exertion can return to her past work as a waitress. Plaintiff
Donna Black (“Plaintiff” or “Black”) applied for disability insurance benefits pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that she is unable to
work because of a disability. Her application was denied at the initial administrative level.
Plaintiff then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ found that Black was not under a “disability” as defined in
the Social Security Act and denied Plaintiff’s claim for benefits. The Appeals Council
rejected a subsequent request for review. Consequently, the ALJ’s decision became the final
decision of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen,

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.

792 F.2d 129, 131 (11th Cir. 1986). Pursuant to 28 U.S.C. § 636(c), the parties have
consented to entry of final judgment by the United States Magistrate Judge. The case is now
before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1631(c)(3). Based on the
court's review of the record in this case and the parties’ briefs, the court concludes that the
Commissioner’s decision should be REVERSED and REMANDED.
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 determination,2 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

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).3
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); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “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). 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 (11th Cir. 1986).
[The court must] . . . 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).
III. Medical Background
In 1995, Black underwent a lumbar laminectomy. R. 494. On August 15, 2010,
Black suffered a heart attack. She was diagnosed with coronary artery disease and
underwent an emergency heart catheterization and revascularization with stent placement.
R. 315-81. In January 2011, she underwent an additional heart revascularization and stent
3

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

placement procedure. R. 280-91.
On October 11, 2011, Black went to Physical Express, complaining of pain,
numbness, tingling, and a burning sensation in the right wrist and that her middle finger
“locks up.” R. 422. On October 19, 2011, Black returned to Southeastern Cardiology
Consultants for a follow-up appointment. R. 403. The nurse practitioner noted that Black
walks one or two times a week. R. 404. He assessed carotid bruit and coronary artery
disease and recommended an ultrasound, to increase her prescription for Livalo, and
“recommended starting or continuing a regular exercise program for good health.” R. 405.
Dr. Thomas J. Wool, a cardiologist, concurred with the diagnostic assessment and plan. Id.
A carotid doppler report conducted on October 24, 2011, indicates “right internal carotid
artery has moderate disease with stenosis of 40-59%, probably mid range; left internal
carotid artery has moderate to severe disease with stenosis of 60-79%, probably low range;
left common carotid artery also has moderate disease throughout; [and] vertebral flow is
antegrade bilaterally.” R. 407. A nerve conduction velocity test conducted on October 25,
2011, indicates carpal tunnel syndrome, moderately severe on the right and mild on the left.
R. 410.
On November 1, 2011, Black returned to Physical Express complaining of chest pain
lasting in duration for six days, as well as pressure, weakness, and a tired feeling. R. 420.
On November 14, 2011, Black underwent a right carpal tunnel release procedure. R. 488.
During a follow-up appointment on November 29, 2011, Dr. Hussein Turki, the surgeon,
noted that Black’s “numbness is much improved” and that she “has some incision pain,
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which is normal.” R. 484. On January 26, 2012, Dr. Warren G. Brantley, a psychologist,
conducted a consultative mental examination, in which he found that Black “appears to be
quite capable of working . . . [and] capable of doing children’s daycare.” R. 492.
On January 28, 2012, Dr. Stuart May, a gynecologist, conducted a consultative
examination. R. 495. The physician noted that Black was “able to walk to the exam room
without assistance and sat comfortably” and that “[s]he got on and off the exam table, and
took her shoes off and put them back on without difficulty.” Id. He also found as follows:
There is a scarcity of positive findings in this claimant. She does have a
positive straight leg raising test on the left. No muscle spasms, crepitus,
effusion, or trigger points. Both knees were tender to movement, but range of
motion was normal.
R. 497. An x-ray ordered by Dr. May indicated “mild tricompartmental degenerative
osteoarthritis most significant in the patellofemoral joint and medial joint compartment” and
“a small joint effusion.” R. 500. Dr. May diagnosed Black with coronary artery disease,
degenerative disc disease of the lumbar spine, and degenerative joint disease of the knees.
R. 497.
On April 25, 2012, a carotid doppler report indicated that “right and left ICA have
moderate disease with a stenosis of 40-59%, probably mid-range” and “right distal common
carotid artery and mid left common carotid artery have mild to moderate plaque formation”
with “verterbral flow . . . antegrade bilaterally.” R. 503.
On April 30, 2012, magnetic resonance imaging (“MRI”) of the lumbar spine
indicated the following:
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There are fatty changes on both sides of the disc space at L5-S1 consistent
with miotic type 2 changes. All the discs in the lumbar spine appear to be
slightly dessicated. There is marked disc space narrowing at L5-S1. The
conus medullaris ends at the L1-L2 level. On the axial images, T11-T12, T12L1 there is minimal disc bulge.
At L1-L2, there is diffuse disc bulge causing mild central stenosis.
At L2-3, there is diffuse disc bulge causing minimal central stenosis.
At L4-5, there is a diffuse disc bulge and facet degenerative changes causing
mild-to-moderate central stenosis. There may be some minimal left-sided
foraminal stenosis.
At L5-S1, there is a diffuse disc bulge and facet degenerative changes causing
mild central stenosis and bilateral foraminal stenosis, left greater than right.
R. 507.
On May 30, 2012, MRI of the cervical spine indicated the following:
1.

C4-5 left disc protrusion, narrowing the left lateral recess and
neural foramen.

2.

Minimal C3-4 and C5-6 spinal stenosis.

3.

Tiny C5-6 annulus tear.

R. 508.
On June 18, 2012, Black began receiving treatment at the Alabama Pain Management
Center for her complaints of neck and lower back pain. R. 510. Dr. William Montiel found
“right loading cervical spine positive; cervical palpation revealed tenderness; painful cervical
range of motion; [and] decreased cervical range of motion.” R. 511. He also found
“decreased lumbar spine range of motion; painful lumbar spine range of motion; lumbar
spine palpation revealed tenderness; the straight leg raising test is positive on the right.” Id.

6

Dr. Montiel’s diagnostic assessment was cervical radiculitis (primary); degenerative disc
disease; cervical spinal stenosis; and cervicalgia. R. 512. Dr. Montiel administered a
cervical injection and prescribed Endocet for the treatment of pain. Id. Black received
additional injections for the treatment of her cervical and lumbar pain on July 9, 2012, July
25, 2012, September 17, 2012, and November 26, 2012. R. 517-520, 531.
On October 29, 2012, Black returned for a follow-up appointment at Southeastern
Cardiology Consultants, complaining of periodic pain under her left arm and back. R. 523.
The nurse practitioner noted that Black’s chest discomfort “does seem to have some
relationship to exertion” and is “worrisome for cardiac etiology.” R. 525. His diagnostic
assessment was coronary artery disease. The nurse practitioner specifically noted Dr. Dilip
C. Patel concurred with the nurse practitioner’s assessment and plan, including a prescription
for isosorbide and an order for an electrocardiogram (“EKG”). Id.
On November 5, 2012, the results of the EKG were “abnormal.” R. 546. During a
stress test, Black suffered from “some chest pain” after three minutes and “sharp” pain after
five minutes of walking on the treadmill. Id. Black continued to suffer from some chest
pain after the conclusion of the exam. Id. A dual isotope imaging report, however, indicated
no evidence of ischemia and a low probability of obstructive coronary artery disease. R. 542.
On December 10, 2012, Black returned to Alabama Pain Management complaining
of cervicalgia radiating into her right shoulder; right leg tingling with position, mostly while
sitting; and low blood pressure. R. 533. She rated her neck pain as a 6 on a ten-point scale.
Id. Upon examining Black, Dr. Monteil noted “cervical palpation revealed tenderness; right
7

loading cervical spine positive; painful cervical range of motion; decreased cervical range
of motion.” R. 533. In addition, he found “decreased lumbar spine range of motion; mild
painful lumbar spine range of motion; the straight leg raising test is positive on the right.”
Id. A neurologic examination also indicated “tingling radiating to L4-5 dermatomes.” Id.
Dr. Monteil prescribed Nucynta tablets. Id.
On December 13, 2012, Black went to Southeast Cardiology Consultants complaining
of exertional dyspnea and occasional chest tightness. R. 536. She “asked about exercising
on the treadmill.” R. 536. The nurse practitioner noted that Black walks one or two times
a week. R. 537. He found that Black “is improved and had a negative stress test” and that
she “was encouraged to begin exercising gradually.” R. 538. His diagnostic assessment was
coronary artery disease. Id.
On February 18, 2013, Oluyinka Adediji, a consultative physician, conducted a
musculoskeletal examination. R. 549-553. His diagnostic assessment was neck pain
secondary to cervical spondylosis; low back pain secondary to lumbar disc disease and
spondylosis; and coronary heart disease, stable. R. 553. Dr. Adediji noted Black’s “main
limiting factor is pain” and that “[s]he is going to need spine protective restriction in terms
of weight bearing, stooping or crouching.” Id. He found that Black has the ability to sit for
no more than three hours and stand or walk no more than one hour at a time without
interruption. R. 555. He also found that she is able to sit for no more than six hours and
stand or walk for no more than three hours in an eight-hour work day due to her lower back
and neck pain. Id. In addition, Dr. Adediji indicated that Black can never stoop or crouch

8

and can only occasionally climb stairs, balance, kneel, and crawl. R. 557.
On March 1, 2013, Dr. Dexter Walcott conducted an examination of Black’s bilateral
knees. The orthopedic specialist noted a history of bilateral knee problems and “multiple
problems with back, neck and back procedure and has neck trouble now.” R. 561. Black
indicated that her knees “pop” and hurt upon standing and that she has some leg weakness.
X-rays indicated “some mild patelloremoral arthritis and mild medial compartment
narrowing.” Id. Dr. Walcott’s diagnostic impression was bilateral knee, right greater than
left, chondromalacia of the patella. He administered an injection of Depo-Medrol, Lidocaine,
and Marcaine, and recommended rehabilitation exercises at home and an MRI scan of the
most symptomatic knee if her condition did not improve. Id.

IV. The Issues
A. The Commissioner’s Decision
Black was 57 years old at the time of the hearing and is a high school graduate. R.
35. She has prior work experience as a waitress at Momma’s Country Kitchen between 1987
and 1999 and as a home daycare worker between 1999 and 2011. R. 37, 41, 42. Black
alleges that she became disabled on August 1, 2011, due to coronary artery disease, cervical
degenerative disc disease, carpal tunnel surgery, spinal stenosis, compartmental degenerative
joint disease of the right knee, depression, and hypertension. R. 42-44. After the hearing,
the ALJ found that Black suffers from severe impairments of obesity: cervical spondylosis
with radiculopathy: lumbar disc diesase and spondylosis; status post coronary artery disease,
stable with stent; status post right carpal tunnel surgery; bilateral mild patella femoral
9

arthritis and mild medial compartment narrowing of the knees; and carpal tunnel syndrome.
R. 15. He also found that she suffers from non-severe impairments of hypertension and
depression. R. 15-16. The ALJ found that Black retains the residual functional capacity to
perform light work with the following restrictions:
. . . [T]he claimant can sit up to three hours without interruption and a
total of six hours over the course of an eight-hour workday. The claimant can
stand and/or walk up to three hours without interruption and a total of six
hours each over the course of an eight-hour day. . . . She cannot climb
ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs. She
can occasionally balance, stoop, kneel, crouch, and crawl. She cannot work
at unprotected heights. She cannot work with hazardous machinery. . . . She
can occasionally work in humidity and wetness. She can occasionally work
in dusts, odors, fumes, gases, poorly ventilated areas and other pulmonary
irritants. She cannot work in extreme temperatures. She cannot work while
subject to vibration. . . . [S]he cannot perform rapid or production rate work.”
R. 18. Relying in part on testimony from a vocational expert, the ALJ concluded that Black
is able to return to her past work as a waitress. R. 24. Accordingly, the ALJ concluded that
Black is not disabled. Id.

B. The Plaintiff’s Claims

Black presents the following issues for review:
(1)

The ALJ erred in his evaluation of two non-treating medical
source opinions.

(2)

The ALJ erred in finding Black retained the residual functional
capacity to return to her past relevant work as a waitress.

(3)

The ALJ erred in his evaluation of Black’s statements regarding
the nature and limiting effects of her physical impairments.

10

(4)

The ALJ failed to consider the combined impact of Black’s
impairments.

Doc. 12, Pl’s Br., p. 1.
IV. Discussion
A disability claimant bears the initial burden of demonstrating the existence of a
disability. 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) (emphasis added). Within this analytical framework, the court will
address the plaintiff's claims.
Black argues that the ALJ erred in affording significant weight to the opinions of Dr.
Robert Heilpern, a non-examining state agency physician, and Dr. Oluyinka S. Adediji, a

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consultative examining physician, when determining that she has the residual functional
capacity to perform light work. Specifically, she asserts that Dr. Heilpern’s opinion is not
based on a review of all the medical records. In addition, Black contends that the ALJ failed
to specify his reasons for affording significant weight to the opinions of the non-treating
physicians.
The ALJ, without explanation, affords significant weight to the opinion of Dr.
Heilpern. The problem with the ALJ’s reliance on the non-examining physician’s opinion
is that Dr. Heilpern did not review all the relevant medical evidence before forming his
opinion. In addition, his opinion is inconsistent with other expert opinions. The transcript
indicates that, upon reviewing most of the medical records dated on or before March 2, 2012,
Dr. Heilpern found that Black is able to stand and/or walk for a total of six hours in an eighthour work day. R. 93. He also found that she is able to sit for a total of 6 hours in an eighthour work day and occasionally stoop, kneel, crouch, and crawl. R. 94.

Dr. Heilpern

concluded that Black has the residual functional capacity to return to her past work as a
daycare provider. R. 97. Both the ALJ and the vocational expert, however, determined that
Black is unable to return to her past work as a daycare provider. In addition, Dr. Heilpern’s
opinion is inconsistent with the opinion of Dr. Adediji.
On February 18, 2013, Dr. Adediji, a doctor of internal medicine, performed a
consultative evaluation. R. 549-553. His diagnostic assessment was neck pain secondary
to cervical spondylosis; low back pain secondary to lumbar disc disease and spondylosis; and
coronary heart disease, stable. R. 553. Dr. Adediji noted Black’s “main limiting factor is

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pain” and that “[s]he is going to need spine protective restriction in terms of weight bearing,
stooping or crouching.” Id. He found that Black is able to sit for no more than three hours
and stand or walk no more than one hour at a time without interruption. R. 555. He also
found that she is able to sit for no more than six hours and stand or walk for no more than
three hours in an eight-hour work day due to her lower back and neck pain. Id. In addition,
Dr. Adediji indicated that Black can never stoop or crouch and can only occasionally climb
stairs, balance, kneel, and crawl. R. 557.

Despite the inconsistent findings, the ALJ

inexplicably assigned “significant weight” to the opinions of both Dr. Adediji and Dr.
Heilpern.
During the hearing, the ALJ posed a hypothetical to the vocational expert which
included restrictions similar to those specified by Dr. Adediji. Specifically, the ALJ asked:
. . . [A]ssume that such an individual could not stand or walk at least four
hours total over the course of an eight-hour day, would she be able to perform
any of her past relevant work?
R. 75. The vocational expert testified that such an individual would not be able to perform
her past work as a waitress. Id. The ALJ, however, ignored both Dr. Adediji’s opinion
regarding the duration Black is able to stand and/or walk and the vocational expert’s opinion
that a person with such restrictions cannot perform work as a waitress when concluding that
Black can return to her past work as a waitress.
Black also argues that the ALJ improperly discredited her allegations of pain. Black

testified that her pain was so severe that she has been unable to work since the date of onset,
August 1, 2011. She also alleged that his pain and impairments lasted for a continuous
13

period of not less than twelve months. The ALJ did not credit this testimony. The court
cannot conclude that the ALJ’s discrediting of Black’s allegation of severe pain is supported
by substantial evidence.
“Subjective pain testimony supported by objective medical evidence of a condition
that can reasonably be expected to produce the symptoms of which the plaintiff complains
is itself sufficient to sustain a finding of disability.” Hale v. Bowen, 831 F.2d 1007 (11th Cir.
1987). The Eleventh Circuit has established a three-part test that applies when a claimant
attempts to establish disability through his own testimony of pain or other subjective
symptoms. Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986); see also Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). This standard requires evidence of an
underlying medical condition and either (1) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (2) an objectively determined
medical condition of such severity that it can reasonably be expected to give rise to the
alleged pain. Landry, 782 F. 2d at 1553. In this circuit, the law is clear. The Commissioner
must consider a claimant’s subjective testimony of pain if he finds evidence of an underlying
medical condition and the objectively determined medical condition is of a severity that can
reasonably be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460,
1462 (11th Cir. 1986); Landry, 782 F.2d at 1553. Thus, if the Commissioner fails to
articulate reasons for refusing to credit a claimant's subjective pain testimony, the
Commissioner has accepted the testimony as true as a matter of law. This standard requires
that the articulated reasons must be supported by substantial reasons. If there is no such

14

support then the testimony must be accepted as true. Hale, 831 F.2d at 1012.
As previously discussed, the medical records indicate that Black suffers from a
combination of impairments, including arthritic knees, bulging discs in her cervical and
lumbar spine, and coronary artery disease. At the administrative hearing, Black testified that
she is unable to stand or walk for long periods of time, but that she is able “to do something
maybe for 30 to 45 minutes to an hour” and “then lay down on the couch . . . for about an
hour or so.” R. 54, 56-57.
The ALJ found that Black is “only partially credible, as her allegations appear
inflamed.” R. 22. Where an ALJ decides not to credit a claimant’s testimony, the ALJ must
articulate specific and adequate reasons for doing so, or the record must be obvious as to the
credibility finding. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Jones v. Dept.
of Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons must
be based on substantial evidence). If proof of disability is based on subjective evidence and
a credibility determination is, therefore, critical to the decision, “‘the ALJ must either
explicitly discredit such testimony or the implication must be so clear as to amount to a
specific credibility finding.’” Foote, 67 F.3d at 1562, quoting Tieniber, 720 F.2d at 1255
(although no explicit finding as to credibility is required, the implication must be obvious to
the reviewing court). The ALJ has discretion to discredit a plaintiff’s subjective complaints
as long as he provides “explicit and adequate reasons for his decision.” Holt, 921 F.2d at
1223. The ALJ concluded that Black’s allegations regarding her impairments were not
credible to the extent alleged and discounted that testimony.

15

This court cannot conclude that the ALJ’s reasons for discrediting allegations of pain
are supported by substantial evidence. For example, the ALJ found that the medical records
show that Black’s cardiovascular examination was normal. The medical record, however,
indicates that the results of an electrocardiogram were “abnormal” and that Black suffered
from chest pains during and after a stress test on November 5, 2012. R. 546. The ALJ is not
free to simply ignore medical evidence, nor may he pick and choose between the records
selecting those portions which support his ultimate conclusion without articulating specific,
well supported reasons for crediting some evidence while discrediting other evidence.
Marbury v. Sullivan, 957 F.2d 837, 839-41 (11th Cir. 1992)

The ALJ also discredited Black’s allegations of pain on the basis that she “provides
childcare for her children.” R. 23. The evidence indicates that Black’s grandchildren were
ten and thirteen years old, that they “do their own thing,” and that their parents live down
the street. R. 59. The ALJ also emphasizes that Black “walks up and down her street and
her yard every day” and “even inquired about exercising on the treadmill.” R. 23. The ALJ,
however, does not consider the evidence in its entirety. A cardiovascular questionnaire
indicates that it takes “thirty minutes or so” for Black to walk half of a mile. R. 228.
Furthermore, the court cannot conclude that inquiring whether it is safe to exercise on a
treadmill is a basis to discredit an individual’s allegations of pain. In order to fulfill his
obligations, the ALJ must, at the very least, resolve the inconsistencies in the evidence, rather
than selectively choosing items to support his decision. See Marbury, supra.

The ALJ compounded his errors by failing to consider the effect the combination of
16

all of her impairments have on her ability to perform light work as a waitress. As previously
discussed, the ALJ ignored objective medical evidence which substantiates Black’s
allegations of pain arising from several impairments, including coronary artery disease,
bulging discs, and arthritic knees. The ALJ must consider every impairment alleged by Black
and determine whether the alleged impairments are sufficiently severe - either singularly or
in combination - to create a disability. See Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir.
1986).
“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s
duty to investigate the facts and develop the arguments both for and against granting
benefits.” Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty
of the ALJ to investigate the facts and develop the arguments both for and
against granting benefits; review by the Appeals Council is similarly broad.
Id. The regulations also make the nature of the SSA proceedings quite clear.
They expressly provide that the SSA “conducts the administrative review
process in an informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
For these reasons, the court concludes that the Commissioner erred as a matter of law,
and that the case should be reversed and remanded for further proceedings.
V. CONCLUSION
Accordingly, this case will be reversed and remanded to the Commissioner for further
proceedings consistent with this opinion. It is further

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ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273,
1278 fn. 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 F. App’x. 241, 242 fn.1 (11th Cir. 2008).
A separate final judgment will be entered.
DONE this 3rd day of February, 2016.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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