Cole-Smith v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 5/29/12. (SAC )

FILED
2012 May-29 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEBRA A. COLE-SMITH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 2:11-CV-2857-VEH
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MEMORANDUM OPINION
Plaintiff Debra A. Cole-Smith (“Ms. Cole-Smith”) brings this action pursuant
to 42 U.S.C. §§ 216(i) and 223 of the Social Security Act (the “Act”). She seeks
review of a final adverse decision of the Commissioner of the Social Security
Administration (hereinafter “Commissioner” or “Secretary”), who denied her
application for Disability Insurance Benefits (“DIB”). Ms. Cole-Smith timely
pursued and exhausted her administrative remedies available before the
Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g), § 205(g)
of the Act.

FACTUAL AND PROCEDURAL HISTORY
Ms. Cole-Smith was a forty-nine-year-old female at the time of her hearing
before the administrative law judge (the “ALJ”) held on April 26, 2010. (Tr. 75, 60).
In terms of education, Ms. Cole-Smith completed the twelfth grade and a year of
college. (Tr. 67). Ms. Cole-Smith also obtained a cosmetology degree. (Id.). Ms.
Cole-Smith’s prior vocational experience includes positions as a home health
assistant, a dispatcher, and a nursing assistant at a nursing home. (Tr. 74-75).
Ms. Cole-Smith protectively applied for DIB January 10, 2008. (Tr. 12, 101).
She maintains that she became disabled on December 25, 2007, due to back disorders
and other unspecified arthropathies (i.e., joint diseases). (Tr. 12, 101); see New
Webster’s Dictionary and Thesaurus & Medical Dictionary 898 (1991) (defining
arthropathy as “any joint disease”). Her claim was denied initially on February 27,
2008. (Tr. 12, 101).
Ms. Cole-Smith filed a request for a hearing on March 12, 2008. (Tr. 110). A
hearing before the ALJ was held on April 26, 2010, in Birmingham, Alabama. (Tr.
12, 60).
On July 29, 2010, the ALJ concluded Ms. Cole-Smith was not disabled as
defined by the Act and denied her DIB application. (Tr. 12-32). On August 27, 2010,
Ms. Cole-Smith submitted a request for review of the ALJ’s decision, which was
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received on August 30, 2010. (Tr. 5). On June 15, 2011, the Appeals Council denied
review. As a result, the ALJ’s disability determination that was adverse to Ms. ColeSmith became the final decision of the Commissioner. (Tr. 1).
On August 15, 2011, Ms. Cole-Smith initiated her lawsuit asking this court to
review the ALJ’s decision. (Doc. 1). On January 5, 2012, Ms. Cole-Smith filed a
brief (Doc. 9) in support of her appeal, and on February 2, 2012, the Commissioner
answered with his responsive brief. (Doc. 10). Ms. Cole-Smith elected not to file a
reply. This court has carefully considered the record, and for the reasons stated
below, reverses the Commissioner’s denial of benefits, and remands the case for
further development and consideration.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
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relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
disability, the claimant must be disabled as defined by the Act and the Regulations
promulgated thereunder.1 The Regulations define “disabled” as the “inability to do
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

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts
400 to 499, as current through April 19, 2012.
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be expected to last for a continuous period of not less than twelve (12) months.” 20
C.F.R. § 404.1505(a). To establish an entitlement to disability benefits, a claimant
must provide evidence of a “physical or mental impairment” which “must result from
anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §
404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the
claimant has satisfied steps one and two, she will automatically be found disabled if
she suffers from a listed impairment. If the claimant does not have a listed
impairment but cannot perform her work, the burden shifts to the Secretary to show
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that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Foote,
67 F.3d at 1559.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found Ms. Cole-Smith had not engaged in substantial gainful activity
since the alleged onset date of her disability, i.e., December 25, 2007. (Tr. 30 ¶ 1).
Thus, the claimant satisfied step one of the five-step test. 20 C.F.R. § 404.1520(b).
Under step two, the ALJ concluded that “[t]he claimant has the following
‘severe’ impairments of tennis elbow; very slight narrowing of the left hip joint with
phleboliths in the left pelvis and carpal tunnel syndrome.” (Tr. 30 ¶ 3). Accordingly,
the ALJ concluded that Ms. Cole-Smith satisfied the second step of the sequential
disability evaluative process. 20 C.F.R. § 404.1520(c).
At step three, the ALJ determined that Ms. Cole-Smith did not have an
impairment or a group of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 31 ¶ 3). Ms. ColeSmith does not challenge this determination on appeal.
Regarding Ms. Cole-Smith’s residual functional capacity (“RFC”), the ALJ
found:
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The claimant retains the . . . [ability] to perform light work which allows
no driving, work at unrestricted heights, no push or pull with her upper
extremities, no overhead reaching or lifting with her right arm; no
pushing or pulling with her left leg, no climbing and occasional turning
of her head/neck to the left side. She should be permitted to sit or stand
at her option and can only occasionally perform fine and gross
manipulation.
(Tr. 31 ¶ 5).2
In support of his RFC determination, the ALJ gave little weight to the physical
capacities evaluation of Ms. Cole-Smith (Tr. 411–13) performed by the consultative
examiner Guy B. Dewees (“Dr. Dewees”). (See Tr. 29 “These forms, however, are
simply not consistent with his own narrative or other documents contained in the
evidence of record, and are entitled to little persuasion.”)). Based upon his medical
assessment, Dr. Dewees determined that Ms. Cole-Smith “would be unable to sustain
2

The Regulations define light work as:

(b) Light work. Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide
range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or
she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods
of time.
20 C.F.R. § 404.1567(b) (current through April 19, 2012).
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an eight hour work day.” (Tr. 29).
Against this backdrop, and in reliance upon testimony from a vocational expert,
the ALJ concluded that Ms. Cole-Smith’s impairments prevented her from performing
past relevant employment. (Tr. 29; Tr. 31 ¶ 9). Because of the ALJ’s finding that Ms.
Cole-Smith was unable to perform past relevant work, it was necessary to continue
to step five of the sequential analysis. (Tr. 29-30).
Using the Medical-Vocational Guidelines as a framework and relying upon
testimony from the vocational expert, the ALJ determined that Ms. Cole-Smith was
capable of “performing light and sedentary jobs which exist in significant numbers
in the national economy.” (Tr. 30). Examples of such possible light positions
included employment as an information clerk and control area checker. (Id.).
Potential sedentary employment was as a surveillance system monitor.

(Id.).

Accordingly, the ALJ concluded Ms. Cole-Smith was not disabled as defined by the
Social Security Act, and denied her DIB claim. (Tr. 30; Tr. 32).
ANALYSIS
In this appeal, Ms. Cole-Smith raises several different issues, including
whether the ALJ erred in his rejection of the medical source opinion3 provided by Dr.
“Medical source statements are ‘medical opinions submitted by acceptable
medical sources, including treating sources and consultative examiners, about what
an individual can still do despite a severe impairment(s), in particular about an
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Dewees (i.e., “I do not think that she could work at any job eight hours a day, 40
hours a week, 50 weeks a year, even if such a job were of a light or sedentary nature.
I consider her to be totally and permanently disabled by the above-outlined medical
problems.”) (Tr. 418), and in formulating Ms. Cole-Smith’s RFC without the benefit
of any additional vocationally-related opinion evidence from a physician. The court
turns to these issues first and agrees with Ms. Cole-Smith that, under the
circumstances of her case, the Commissioner has committed reversible error.4
A.

The ALJ’s Committed Reversible Error in His Evaluation
and Weighing of the Medical Opinion Evidence.5

In Sharfarz v. Bowen, 825 F.2d 278 (11th Cir. 1987), the Eleventh Circuit
explained:
In assessing the medical evidence in this case, the ALJ was required to
state with particularity the weight he gave the different medical opinions
and the reasons therefor. MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986). Further, he was required to accord considerable
weight to appellant’s treating physician’s opinion absent good cause for

individual’s physical and mental abilities to perform work-related activities on a
sustained basis.’” SSR 96-5p.
As a result, the court does not reach the merits of the other issues presented
on appeal.
4

The following framework, analysis, and disposition are persuasively
supported by the undersigned’s decision in Gaught v. Astrue, No. 6:11-2681-VEH
(Docs. 12, 13) (May 14, 2012) (reversing and remanding due to ALJ’s error in
treatment of medical opinion evidence).
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not doing so. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th
Cir.1985) (per curiam). The opinions of nonexamining, reviewing
physicians, such as those of Drs. Thomas and Register, when contrary
to those of the examining physicians, are entitled to little weight, and
standing alone do not constitute substantial evidence. See Spencer ex
rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (per
curiam). Of course, the ALJ may reject any medical opinion if the
evidence supports a contrary finding. Sryock v. Heckler, 764 F.2d 834,
835 (11th Cir.1985) (per curiam).
The ALJ, here, disregarded these rules in assigning weight to the various
medical opinions. The only opinions that indicated that appellant could
meet the medium work requirements of 20 C.F.R. 404.1567(c) (1986)
were those of the nonexamining physicians, Drs. Thomas and Register.
Their opinions were entitled to little weight, however, and could not
serve as substantial evidence.
Sharfarz, 825 F.2d at 279-80 (emphasis added).
Here, the ALJ has committed legal error because his RFC determination is in
apparent conflict with the above rules applicable to medical source opinions and,
regardless, his decision is not supported by substantial evidence. Preliminarily, the
ALJ’s explanation for disregarding Dr. Dewees’s examination-based opinion is
flawed and difficult to follow. (Tr. 29; see also Tr. 411–13; Tr. 415-18). Moreover,
his dubious rationale for dismissing Dr. Dewees’s opinion is not defended by the
Commissioner. (See generally Doc. 9).
In an effort to explain why he discounted Dr. Dewees’s report, the ALJ
indicated that the “forms . . . are not consistent with his own narrative or other

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documents contained in the evidence of record, and are entitled to little persuasion.”
(Tr. 29 (emphasis added)). In making this assertion, however, the ALJ pointed to
neither any narrative nor medical record evidencing such an inconsistency.
The ALJ further reasoned:
It is noted that the claimant underwent the examination which formed
the basis of the opinion in question, not in an attempt to seek treatment
for symptoms, but rather, through attorney referral and in connection
with an effort to generate evidence for the current appeal. Further, the
doctor was presumably paid for the report. Although such evidence is
legitimate and deserves consideration, the context in which it was
produced cannot be entirely ignored. The doctor apparently relied quite
heavily on the subjective report of symptoms and limitations provided
by the claimant, and seemed uncritically to accept as true most, if not all,
of what the claimant reported. Yet, as explained elsewhere in this
decision, there exist good reasons for questioning the reliability of the
claimant’s subjective complaints.
(Tr. 29 (emphasis added)). Thus, while the ALJ confusingly acknowledged that Dr.
Dewees’s vocational evaluation of Ms. Cole-Smith “deserve[d] consideration,” he
nonetheless gave little weight to it,6 on the basis that Dr. Dewees was retained by the
claimant’s lawyer and was probably paid for the consultation. Assuming that both
of these statements are factually true, the Commissioner did not cite to, and the court
is unaware of, any controlling authority which embraces these particular factors as

The ALJ never indicated which portions, if any, of Dr. Dewees’s opinions he
credited. Instead, it appears to the court that the ALJ disregarded Dr. Dewees’s
consultative findings in their entirety.
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appropriate reasons for rejecting a consulting physician’s opinion, whether such a
doctor is retained by a claimant or the Commissioner.
As for the ALJ’s third point about Dr. Dewees’s “quite heav[y]” reliance upon
Ms. Cole-Smith’s subjective allegations of pain, while, if true,7 this could potentially
support perhaps a partial rejection of Dr. Dewees’s opinion, by itself, it is an
inadequate justification to ignore the report entirely, especially when nowhere else
in his decision did the ALJ cite to an alternative physical capacity evaluation or
medical source opinion provided by a physician as underlying support for his RFC
determination.
In fact, the only other physical capacity assessment that the court was able to
locate in the record consistent with the ALJ’s determination that Ms. Cole-Smith was
able to perform a reduced range of light and sedentary work was one performed by
a non-examining agency medical consultant named Mark Swink (“Mr. Swink”) on
February 27, 2008. (Tr. 338-45). The ALJ made no mention of this non-examining
report generated by a non-physician in his opinion.

The ALJ stated that Dr. Dewees “apparently relied quite heavily on the
subjective report of symptoms and limitations provided by the claimant, and seemed
uncritically to accept as true most, if not all, of what the claimant reported.” (Tr. 29).
Thus, the ALJ used several qualifiers when stating this particular reason, and,
regardless, never specified what made him believe that Dr. Dewees’s vocational
conclusions were more subjectively-based as opposed to objectively-driven.
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However, when the court compares some of the work-related restrictions
ultimately placed upon Ms. Cole-Smith by the ALJ with Mr. Swink’s evaluation
(compare Tr. 341 (finding limitations with respect to gross and fine manipulation),
with Tr. 31 ¶ 5 (“She should be permitted to sit or stand at her option and can only
occasionally perform fine and gross manipulation.”) (emphasis added)), it appears
that the ALJ implicitly adopted at least a part of Mr. Swink’s physical capacity
assessment which, under Sharfarz, was entitled to little weight even if it had been
generated by a doctor over the competing opinion offered by Dr. Dewees. Moreover,
pursuant to Sharfarz, the non-examining, non-physician assessment of Ms. ColeSmith by Mr. Swink, a fortiori, cannot serve as substantial evidence in support of the
ALJ’s disability decision.
B.

In the Absence of a Supporting Medical Source Statement or
a Physical Capacities Evaluation by a Physician That
Considers the Impact of Ms. Cole-Smith’s Severe
Impairments, the ALJ’s RFC Determination That She Can
Perform a Reduced Range of Light Work Is Not Supported by
Substantial Evidence.

Alternatively to running afoul of Sharfarz, the lack of a medical source opinion
or a physical capacities evaluation conducted by a physician that substantiates Ms.
Cole-Smith’s ability to perform a reduced range of light/sedentary work given her

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severe impairments constitutes reversible error.8 Such an omission from the record
is significant to the substantial evidence inquiry pertaining to the ALJ’s RFC
determination. See, e.g., Rohrberg v. Apfel, 26 F. Supp. 2d 303, 311 (D. Mass. 1998)
(“The ALJ failed to refer to-and this Court has not found-a proper, medically
determined RFC in the record.”).
The court acknowledges that the ALJ did refer within his opinion to a host of
records from various medical providers pertaining to Ms. Cole-Smith. (See Tr. 17-27
(summarizing medical evidence spanning from August 8, 2007, to April 19, 2010)).
However, for the most part, such documentation is reported merely as raw physical
findings applicable to Ms. Cole-Smith. (See, e.g., Tr. 320-29 (collection of medical
records from UAB Medical West); Tr. 371-76 (collection of physical examination and
recommendation records from Joe L. Gerald, M.D., relating to carpal tunnel
diagnosis); Tr. 394-402 (collection of medical records from ACIPCO Medical Group,

The undersigned has rendered several other comparable decisions which have
reversed the Commissioner due to an underdeveloped record and/or an inadequately
supported residual functional capacity (“RFC”) determination from which the
framework, analysis, and disposition of this alternative analysis in favor of remand
persuasively flow. See, e.g., Mahaley v. Astrue, No. 5:09-CV-0347-VEH, (Docs. 12,
13) (N.D. Ala. Feb. 18, 2010) (reversing and remanding when RFC finding is not
supported by substantial evidence); Glover v. Astrue, No. 3:09-CV-0033-VEH,
(Docs. 15, 16) (N.D. Ala. Mar. 4, 2010) (same); Howard v. Astrue, No. 3:10-CV0527-VEH, (Docs. 15, 16) (Dec. 16, 2010) (same); Stewart v. Astrue, No. 5:11-CV2103-VEH, (Docs. 10, 11) (May 14, 2012) (same).
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including X-ray results and radiology report)). Moreover, with the sole exception of
the documents provided by Dr. Dewees (which the ALJ disregarded), none of these
records includes an opinion about the impact of Ms. Cole-Smith’s impairments in
vocational terms or attaches a physical capacities evaluation of her. See, e.g.,
Rohrberg, 26 F. Supp. 2d at 311 (“Where the ‘medical findings in the record merely
diagnose [the] claimant’s exertional impairments and do not relate these diagnoses
to specific residual functional capabilities such as those set out in 20 C.F.R. §
404.1567(a) . . . [the Commissioner may not] make that connection himself.’”
(quoting Rosado v. Sec’y of Health & Human Servs., 807 F.2d 292, 292 (1st Cir.
1986))).
As another district judge of this court aptly explained the RFC issue in the
context of an ALJ who comparably determined, without the benefit of a physical
capacities evaluation conducted by a physician, that the claimant was not disabled:
While the Record contains Ms. Rogers’[s] medical treatment
history, it lacks any physical capacities evaluation by a physician. The
ALJ made his residual functional capacity evaluation without the benefit
of such evaluation. An ALJ is allowed to make some judgments as to
residual physical functional capacity where so little physical impairment
is involved that the effect would be apparent to a lay person.
Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15
(1st Cir. 1996). In most cases, including the case at bar, the alleged
physical impairments are so broad, complex, and/or ongoing that a
physician’s evaluation is required. Id. In order to have developed a full,
fair record as required under the law, the ALJ should have re-contacted
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Ms. Roger’s [sic] physicians for physical capacities evaluations and/or
sent her to physicians for examinations and physical capacities
evaluations. Further, Ms. Rogers’ [s] ability to lift and to manipulate
objects must be thoroughly evaluated by at least one physician. These
evaluations shall be obtained upon remand. Ms. Rogers’ [s] residual
functional capacity was not properly determined nor supported by
substantial evidence in this case.
Rogers v. Barnhart, No. 3:06-CV-0153-JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16, 2006)
(emphasis added); see also Manso-Pizarro, 76 F.3d at 17 (“With a few exceptions
(not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in
a medical record.” (emphasis added) (citing Perez v. Sec’y of Health & Human Servs.,
958 F.2d 445, 446 (1st Cir.1991))); Rohrberg, 26 F. Supp. 2d at 311 (“An ALJ is not
qualified to assess a claimant’s RFC on the basis of bare medical findings, and as a
result an ALJ’s determination of RFC without a medical advisor’s assessment is not
supported by substantial evidence.” (emphasis added) (citing Rodriguez v. Sec’y of
Health & Human Servs., 893 F.2d 401, 403 (1st Cir.1989))); cf. Giddings v.
Richardson, 480 F.2d 652, 656 (6th Cir. 1973) (“To meet such a prima facie case it
is not sufficient for the government to rely upon inconclusive medical discussion of
a claimant’s problems without relating them to the claimant’s residual capacities in
the field of employment.”) (emphasis added).
Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person
such as an ALJ is not able to discern Ms. Cole-Smith’s work-related exertional
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abilities and appropriate non-exertional restrictions based upon the unfiltered
information contained in her medical records. Moreover, the lack of a medicallydetermined physical RFC that supports the ALJ’s RFC determination is particularly
critical here when, undisputably, Ms. Cole-Smith is not able to perform relevant past
work given the additional job-related restrictions that the ALJ placed on her at the
light/sedentary exertional level. As the undersigned has previously recognized in
another fifth-step burden decision that similarly resulted in a remand for further
development of the claimant’s functional abilities:
The Eleventh Circuit has held that the absence of a physician’s opinion
regarding a plaintiff’s functional limitations does not morph into an
opinion that the plaintiff can work. Lamb v. Bowen, 847 F.2d 698, 703
(11th Cir. 1988). “Such silence is equally susceptible to either
inference, therefore, no inference should be taken.” Id.
Clemmons v. Barnhart, No. 3:06-CV-1058-VEH, (Doc. 22 at 11) (N.D. Ala. June 11,
2007); cf. Reeves v. Heckler, 734 F.2d 519, 522 n.1 (“It is reversible error for an ALJ
not to order a consultative examination when such an evaluation is necessary for him
to make an informed decision.” (citing Ford v. Sec’y of Health & Human Servs, 659
F.2d 66, 69 (5th Cir.1981) (Unit B))).9
Therefore, in the absence of a medical source statement and/or any physical
In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), the
Eleventh Circuit adopted as binding precedent all decisions of the Unit B panel of the
former Fifth Circuit handed down after September 30, 1981.
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capacities evaluation conducted on Ms. Cole-Smith by a physician that corroborates
the ALJ’s determination that she is capable of performing light and sedentary work
with certain non-exertional restrictions despite her severe physical impairments of (i)
tennis elbow; (ii) very slight narrowing of the left hip joint with phleboliths in the left
pelvis; and (iii) carpal tunnel syndrome, the record has not been adequately
developed. See, e.g., Cowart v. Schweiker, 662 F.2d 731, 732 (11th Cir. 1981) (citing
Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)); see also Sobolewski v. Apfel,
985 F. Supp. 300, 314 (E.D.N.Y. 1997) (“The record’s virtual absence of medical
evidence pertinent to the issue of plaintiff’s RFC reflects the Commissioner’s failure
to develop the record, despite his obligation to develop a complete medical history.”).
Likewise, the ALJ’s determination that Ms. Cole-Smith can perform light and
sedentary work with certain non-exertional restrictions is not supported by substantial
evidence. Accordingly, the decision of the Commissioner is due to be reversed on the
basis of this alternative reasoning, and the case remanded for further proceedings
consistent with this memorandum opinion.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision is
not supported by substantial evidence.
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Accordingly, the decision of the

Commissioner will be remanded by separate order.
DONE and ORDERED this the 29th day of May, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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