Johnson v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/15/2016. (JLC)
2016 Nov-15 PM 03:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JIMMY DEE JOHNSON,
CAROLYN W. COLVIN, ACTING
) Case No.: 2:15-CV-1149-VEH
Plaintiff Jimmy Dee Johnson (“Mr. Johnson”) brings this action under 42
U.S.C. § 405(g), Section 205(g) of the Social Security Act. He seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied his application for Disability Insurance Benefits
(“DIB”).1 Mr. Johnson timely pursued and exhausted his administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.
In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.
§ 405(g).2 For the following reasons, the court REVERSES and REMANDS the
Commissioner’s decision for further consideration in accordance with this opinion.
STATEMENT OF THE CASE
Mr. Johnson was 59 years old at the time of his hearing before the
Administrative Law Judge (“ALJ”). Compare Tr. 26 with Tr. 32. He has completed
the 11th grade. Tr. 148. His past work experience includes employment as a
supervisor/assistant manager and auto mechanic helper. Tr. 32, 148-50. He claims he
became disabled on July 1, 2002, due to bilateral hearing loss, diabetes, hypertension,
kidney cancer, and arthritis. Tr. 30, 133, 146-56, 159-66, 169-75, 178-80. His last
period of work ended in 2002. Tr. 52.
On May 15, 2012, Mr. Johnson protectively filed a Title II application for a
period of disability and DIB. Tr. 26. On August 7, 2012, the Commissioner initially
denied these claims. Id. Mr. Johnson timely filed a written request for a hearing on
October 9, 2012. Id. The ALJ conducted a hearing on the matter on October 31, 2013.
Id. On March 13, 2014, he issued his opinion concluding Mr. Johnson was not
disabled and denying him benefits. Tr. 23. He timely petitioned the Appeals Council
to review the decision on March 25, 2014. Tr. 20. On June 7, 2015, the Appeals
42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
Council issued a denial of review on his claim. Tr. 1.
Mr. Johnson filed a Complaint with this court on July 9, 2015, seeking review
of the Commissioner’s determination. (Doc. 1). The Commissioner answered on
January 13, 2016. (Doc. 6). Mr. Johnson filed a supporting brief (doc. 10) on March
10, 2016, and the Commissioner responded with her own (doc. 13) on April 23, 2016.
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). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions 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, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.3 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 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 about a “physical or mental
impairment” that “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
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
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 Commissioner;
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
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
[Commissioner] to show 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. Id.
After consideration of the entire record, the ALJ made the following findings:
Mr. Johnson met the insured status requirements of the Social Security
Act through December 31, 2007.
He had not engaged in substantial gainful activity since July 1, 2002, the
alleged disability onset date.
He had the following severe impairments: bilateral profound
sensorineural hearing loss requiring a left hearing aid and no useful
hearing in the right ear (20 C.F.R. § 404.1520(c)).
He did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.
He had the residual functioning capacity (“RFC”) to perform a full range
of work at all exertional levels but with the following non-exceptional
limitations: no effective hearing in the right ear, required amplification
through a hearing aide in the left ear, and required observation of
He was unable to perform any past relevant work.
He was “54 years old, which is defined as a younger individual age 18-
49, on the date last insured.”4
He has a limited education and is able to communicate in English.
Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supported a finding that he was “not disabled,” whether or not he had
transferable job skills.
Considering his age, education, work experience, and residual
functioning capacity, there were jobs that existed in significant numbers
in the national economy that he could perform.
Mr. Johnson had not been under a disability, as defined in the Social
Security Act, from July 1, 2002, the alleged onset date, through
December 31, 2007, the date last insured.
An individual aged 54 falls into the age category of a person “closely approaching
advanced age” rather than that of a younger person under age 50. Cf. 20 C.F.R. §§ 404.1563(c),
404.1563(d). However, since the ALJ factored in Mr. Johnson’s correct age in the hypothetical
questions posed to the vocational expert, this error is harmless. Tr. 55; see, e.g., Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (“We find that the ALJ made erroneous statements
of fact, but we conclude that this was harmless error in the context of this case and that the ALJ
applied the proper legal standard when considering the vocational factors.”); Wright v. Barnhart,
153 F. App’x 678, 684 (11th Cir. 2005) (unpublished) (“However, when an incorrect application
of the regulations results in harmless error because the correct application would not contradict
the ALJ's ultimate findings, the ALJ's decision will stand.”) (citing Diorio, 721 F.2d at 728).
The court can reverse a finding of the Commissioner if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).5 However, the court “abstains
from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Mr. Johnson urges this court to reverse the Commissioner’s decision to deny
his benefits on three grounds: (1) because the ALJ improperly determined his RFC
from the alleged onset date through the last date he was insured; (2) because the ALJ
failed to meet the fifth step burden of establishing there were other jobs available
which existed in significant numbers; and (3) because the ALJ improperly discredited
his subjective testimony of the significance of his hearing loss and other limitations.
(Doc. 10 at 15-16). The court has carefully reviewed the record and finds that this
case should be remanded for further development as it pertains to the ALJ’s RFC
formulation for Mr. Johnson. The court also finds that the ALJ committed reversible
Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
error with respect to his reliance upon certain non-comprehensive hypothetical
questions that he posed to the vocational expert. The court addresses each of these
issues more fully below.
The ALJ’s Disability Determination Is not Supported by Substantial
While Mr. Johnson has the burden of proving his disability, the ALJ has a
basic obligation to develop a full and fair record. See Cowart v. Schweiker, 662
F.2d 731, 735 (11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th
Cir. 1979)). When the ALJ has neglected to develop a full and fair record, the
court “has required the Secretary to reopen the case ‘until the evidence is
sufficiently clear to make a fair determination as to whether the claimant is
disabled or not.’” Thorne, 607 F.2d at 220 (quoting Landess v. Weinberger, 490
F.2d 1187, 1189 (8th Cir. 1974)).
The ALJ’s Decision Does not Substantiate That He Followed the
Proper Legal Standards When Determining Mr. Johnson’s RFC
Mr. Johnson has alleged disability from bilateral hearing loss, diabetes,
hypertension, kidney cancer, and arthritis. Tr. 30, 146-56. However, the ALJ
found that the only severe impairments at the time the claimant’s insured status
expired on December 31, 2007, were bilateral profound sensorineural hearing loss
in the left ear and no useful hearing in the right ear, and he determined that Mr.
Johnson had the RFC to perform a full range of work at all exertion levels with
only hearing loss-related limitations. Tr. 29.
The RFC assessment is based on all of the relevant evidence of a claimant’s
remaining ability to do work, despite impairments. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)). A claimant’s RFC is
a medical determination made by the ALJ. See generally 20 C.F.R. §§ 416.945,
416.946. To determine whether a claimant can work, an ALJ should consider the
claimant’s RFC as well as his age, education, and work experience. Lewis, 125
F.3d at 1440. The ALJ must consider all of the claimant’s impairments, including
impairments that are not severe. See 20 C.F.R. §§ 404.1520(e) and 404.1545; SSR
In the ALJ’s assessment, the opinion of a treating physician “must be given
substantial or considerable weight unless good cause is shown to the contrary.”
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotation marks
omitted). “Good cause” exists when
the treating physician’s opinion was not bolstered by the evidence,
the evidence supported a contrary finding; or
the treating physician’s opinion was conclusory or inconsistent with
his or her own medical records.
Id. at 1241 (citation omitted). The ALJ must clearly articulate his or her reasons
for disregarding a treating physician’s opinion, and the failure to do so is
reversible error. Lewis, 125 F.3d at 1440 (citation omitted); see also 20 C.F.R. §
404.1527(c)(2) (“We will always give good reasons in our notice of determination
or decision for the weight we give your treating source’s opinion.”).
In Walker v. Bowen, 826 F.2d 996 (11th Cir. 1987), the Eleventh Circuit
explained the ALJ’s obligation to consider severe as well as non-severe conditions
in combination when deciding a claimant’s RFC:
We also find that the ALJ failed to consider all of Walker's impairments
in evaluating the evidence. It is established that the ALJ must consider
the combined effects of a claimant’s impairments in determining
whether she is disabled. Jones, 810 F.2d at 1006. When “a claimant has
alleged a multitude of impairments, a claim for social security benefits
may lie even though none of the impairments, considered individually,
is disabling.” Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Furthermore, “it is the duty of the ... [ALJ] to make specific and
well-articulated findings as to the effect of the combination of
impairments and to decide whether the combined impairments cause the
claimant to be disabled.” Id.; 20 C.F.R. § 416.923. It is clear that in this
case the ALJ did not consider the combination of Walker’s impairments
before determining her residual functional capacity. The ALJ made
specific reference only to Walker’s left ankle and obesity. The ALJ’s
findings do not mention Walker's arthralgias in the right knee, phlebitis
in the right arm, hypertension, gastrointestional problems, or asthma,
except to the extent that these “subjectiv[e] complain[t]s do not establish
disabling pain.” Furthermore, Walker complains of pain in both legs.
We discuss further the inadequacy of the ALJ's treatment of Walker’s
pain complaints in Section III. As we observed in Chester, 792 F.2d
129, “pain may not be disabling in and of itself, [but] it may be disabling
when considered along with . . . other impairments.” Id. at 132. The
ALJ’s failure to consider Walker’s physical impairments and pain
complaints in combination alone requires that the decision be reversed
and remanded for reconsideration. Hudson v. Heckler, 755 F.2d 781,
785 (11th Cir. 1985). Thus, we remand this case for review of all of the
evidence under the proper legal standards.
Walker, 826 F.2d at 1001-02 (emphasis added).
The Commissioner claims that the ALJ “properly evaluated the evidence
from the relevant period that demonstrates treatment by Dr. Lee.” (Doc. 13 at 7)
(citing Tr. 28-33). I disagree. In his RFC assessment, the ALJ totally ignored as
“untimely” medical treatment records without stating any “good cause” for doing
so. Instead, the ALJ wrote
The claimant testified he has urinary problems and medical records from
Lawrence Lee, M.D. and Susan Ferguson, M.D. show periods of
uncontrolled diabetes, a syncope episode secondary to low blood sugar,
arthritic pain, and that the claimant required a left radial nephrectomy
secondary to stage III renal carcinoma. Unfortunately, these conditions
all occurred subsequent to the date last insured and these records fail to
assist in establishing disability from the alleged onset date through the
date last insured.
Tr. 31 (emphasis added). A few paragraphs later, the ALJ noted,
Although the claimant’s additional limitations from the combination
of uncontrolled diabetes in 2007 and left kidney removal in 2009
could possibly reduce him to a range of light exertion at that time, and
his advanced age as of November 27, 2008 presents a different
situation, but in this case the claimant’s insured status expired
December 31, 2007, and the only severe impairment at that time is the
Id. (emphasis added). These two passages are the ALJ’s only references to Dr.
Lee’s allegedly untimely medical opinions.
Initially, I note that Dr. Lee’s medical records of “uncontrolled diabetes in
2007" necessarily reflect treatment occurring before the claimant’s date last
insured: December 31, 2007. Additionally, medical opinions based on treatment
occurring after the date of the ALJ’s decision may be chronologically relevant.
Washington v. Social Sec. Admin., Com’r, 806 F.3d 1317 (11th Cir. 2015)(per
curiam) (citing Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983)(requiring
the ALJ on remand to consider the opinion of a treating physician who examined
the claimant eighteen months after his insured status expired and nearly five years
after he became disabled), superseded on other grounds by statute, 42 U.S.C. §
423(d)(5)). Absent good cause, a treating physician’s opinion is entitled to
substantial weight even if the physician’s treatment did not fall squarely within the
relevant period of time. Dempsey v. Comm’r of Social Sec., 454 F. App’x 729, 733
n. 7 (11th Cir. 2011).6
As an unpublished opinion, Dempsey is not binding on this court; instead, it is
persuasive authority. See 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.”).
Here, the ALJ failed to demonstrate he sufficiently considered the opinions
of Dr. Lee, both during and immediately after the period between the onset date
and the date last insured. The office treatment records from Dr. Lee and Lee
Internal Medicine, found in Exhibit 6F, span from May 10, 2004 to July 7, 2012.
Tr. 272-489. On several occasions between 2004 and 2007, Dr. Lee diagnosed Mr.
Johnson with hypertension, arthritis, and type two diabetes, among other
conditions.7 See, e.g. Tr. 356, 368. Further, on January 31, 2008, less than a month
after the date last insured, Dr. Lee proscribed Mr. Johnson medication for
hypertension, diabetes, and hypercholesterolemia. Tr. 352-353.
Here, although the ALJ found Mr. Johnson’s arthritis, hypertension, and
type two diabetes to be non-severe conditions when he evaluated them separately
(Tr. 28), the ALJ’s decision lacks any indication that he considered their collective
impact with each other or in combination with Mr. Johnson’s two severe
impairments when he determined his RFC. Cf. Swindle v. Sullivan, 914 F.2d 222,
226 (11th Cir. 1990) (“In evaluating a claimant’s residual function capacity, the
ALJ must consider a claimant’s impairments in combination.” (citing 20 C.F.R. §
Dr. Lee diagnosed Mr. Johnson with several other impairments or illnesses prior to the
date last insured, including high cholesterol, eczema, and obesity. See, e.g. Tr. 359, 361.
However, Mr. Johnson has only raised issue on appeal with the ALJ’s findings in relation to his
diabetes, arthritis, and hypertension diagnoses and does not raise that his kidney disease was
chronologically relevant. Tr. 15, 17, 20. Therefore, the court limits its review to whether the ALJ
properly included these three diagnoses in his RFC assessment.
The ALJ erred both in finding that impairments described in Dr. Lee’s
medical opinions all occurred subsequent to the date last insured and in failing to
consider the implications of Mr. Johnson’s arthritis, hypertension, and type two
diabetes, which were timely to his claim, in forming his RFC assessment. Perhaps
the ALJ did factor in Mr. Johnson’s non-severe impairments in combination when
forming the RFC, but the court simply cannot speculate that the ALJ followed
proper legal standards when the express wording of his decision states otherwise.
Because the ALJ rejected Dr. Lee’s medical records of Mr. Johnson’s
hypertension, diabetes, and arthritis solely based on the ALJ’s incorrect
determination that they were untimely, I cannot determine whether the ALJ
followed the proper legal standards in assessing Mr. Johnson’s collection of severe
and non-severe impairments. Therefore, substantial evidence does not support the
ALJ’s RFC assessment and remand for further consideration is appropriate.
The ALJ Failed To Develop a Full and Fair Record With a Medical
Source Statement or Other Medical Evaluation
See Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (“At step three the ALJ must
determine if the applicant has a severe impairment or a combination of impairments, whether
severe or not, that qualify as a disability.”) (emphasis added); id. (“The ALJ must consider the
applicant’s medical condition taken as a whole.”); see also 20 C.F.R. § 404.1545(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,’ as explained in §§ 404.1520(c),
404.1521, and 404.1523, when we assess your residual functional capacity.”).
In support of his RFC finding for Mr. Johnson, the ALJ did not identify a
medical source statement9 or a physical capacities evaluation conducted by a
physician that substantiates Mr. Johnson’s ability to perform a full range of work
at all exertional levels given his non-severe conditions of asthma, type two
diabetes, and hypertension together with his severe impairments of bilateral
profound sensorineural hearing loss requiring a left hearing aid and no useful
hearing in the right ear. 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
Neither the Eleventh Circuit nor this court has adopted a bright line test to
determine whether the lack of a treating physician's medical source statement as to
a claimant's functional ability calls for a remand. Rose v. Astrue, No. 11-CV1186-VEH, slip op. at 17–18 (N.D. Ala. Nov. 1, 2011); Eljack v. Astrue, No. 2:119
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 individual’s physical and mental
abilities to perform work-related activities on a sustained basis. Medical source statements are to
be based on the medical sources' records and examination of the individual; i.e., their personal
knowledge of the individual. Therefore, because there will frequently be medical and other
evidence in the case record that will not be known to a particular medical source, a medical
source statement may provide an incomplete picture of the individual's abilities.” SSR 96-5p.
CV-1854-VEH, 2012 WL 2476405, at *7-8 (N.D. Ala. June 22, 2012). In some
cases, a treating physician's medical source statement is necessary. See, e.g.,
Coleman v. Barnhart, 264 F. Supp. 2d 1007, 1010-11 (S.D. Ala. 2003). In others,
it is not. See, e.g., Green v. Soc. Sec. Admin., 223 F. App'x 915, 923-24 (11th Cir.
2007) (unpublished) (holding that, even though the ALJ discounted a treating
physician's opinion regarding claimant's functional abilities and limitations, there
otherwise remained substantial evidence to find the claimant not disabled). The
outcome of these cases turns upon the sufficiency vel non of other evidence in the
record that supports the ALJ's RFC determination, even in the absence of a
medical source statement from the claimant's treating physician.
However, this court has recognized the Eleventh Circuit’s view 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.” Clemmons v. Astrue, No.
3:06-CV-1058-VEH, (Doc. 22 at 11) (N.D. Ala. Jun. 11, 2007) (discussing 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. This
court has similarly noted, “where the treating physician has not discharged the
patient from treatment and the physician has not made, and was not asked to make,
a determination regarding plaintiff’s functional capabilities, there is no substantial
evidence to support an ALJ’s functional capacity finding.” Clemmons, (Doc. 22 at
11) (citing Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001)).
The court acknowledges that the ALJ did refer in his opinion to medical
records from Dr. Pappas and Dr. Lee pertaining to Mr. Johnson. (See, e.g., Tr. 31
(citing to Exhibits 2F, 3F, 6F)). However, these referenced documents merely
report raw clinical findings related to Mr. Johnson’s individual conditions.
Moreover, neither of these two treating physicians provided any assessment of Mr.
Johnson’s impairments in vocational terms. See, e.g., Rohrberg v. Apfel, 26 F.
Supp. 2d 303, 311 (D. Mass. 1998) (“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.’”) (citation omitted).
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
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).
This case is also not one of the rare instances where the RFC is so apparent
that the ALJ is justified in making a determination without support from a medical
source statement. See, e.g. Castle v. Colvin, 557 F. App’x 849, 850-53 (11th Cir.
2014) (finding that when the claimant never visited a doctor between the onset
date and date last insured, denied having the problems that normally accompany
his alleged disability, reported engaging in activities that fell into the category of
light work, and had been given a release without work restrictions by a doctor, a
medical source statement was not required).
Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person
such as an ALJ is not able to discern Mr. Johnson’s work-related exertional
abilities and appropriate non-exertional restrictions based upon the unfiltered
information contained in his medical records. The court specifically notes that,
unlike the claimant in Castle, Mr. Johnson had ceased working as of 2002 on the
advice of Dr. Pappas. Tr. 212.10
As the ALJ pointed out, Dr. Pappas completed insurance forms in June 2008, six
months after the date Mr. Johnson was last insured, that limited Mr. Johnson to a 20-pound
lifting capacity and noted that Mr. Johnson could only walk for a maximum of two hours a day;
could only stand for a maximum of four hours a day; was not capable of performing push and
pull movements; could not climb, twist, bend, stoop, or operate heavy machinery; and was not
expected to improve. Tr. 31, 213. As noted above, medical opinions based on treatment
occurring after the date of the ALJ’s decision may be chronologically relevant. Washington v.
Social Sec. Admin., Com’r, 806 F.3d 1317 (11th Cir. 2015)(per curiam) (citing Boyd v. Heckler,
Therefore, in the absence of a medical source statement and/or any physical
capacities evaluation11 conducted on Mr. Johnson by a physician that corroborates
the ALJ’s determination that he is capable of performing a full range of work at all
exertion levels with only non-exertional hearing-based limitations, the record has
not been adequately developed. See, e.g., Cowart v. Schweiker, 662 F.2d 731, 732
(11th Cir. 1981) (citing Thorne, 607 F.2d at 219); 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.”). In light of the above analysis, the ALJ’s disability decision is not
supported by substantial evidence, and remand is appropriate.
The ALJ Posed Two Incomplete Hypothetical Questions and
Erroneously Relied Upon Only Those Answers To Support his
Alternatively, the ALJ’s disability determination is flawed in his reliance
upon expert testimony because of the incomplete questions that he presented to the
vocational expert (“VE”), Norma Strickland. The ALJ posed two separate
704 F.2d 1207, 1211 (11th Cir. 1983). Therefore, these conditions should have factored into the
work-related exertional abilities that the ALJ considered in his determination, along with a
medical source statement by a medical professional.
In his analysis, the ALJ declined to follow or cite to the assessment made by the state
agency disability specialist, who is “not a medical professional.” Tr. 31 (citing Exhibit 1A).
hypothetical questions to the VE. The first hypothetical question was:
This individual had an age transition from younger to closely
approaching advanced age. If that age change makes a different for any
factor in the hypothetical I’ll ask you to address that specifically. This
individual has a limited education. And has experience as both helper
and supervisor as you described those jobs. This individual has no
exertional limitation, but does have no effective hearing in the right ear.
Needs amplification through a hearing [aid] in the left ear. And also is
benefitted from direct observation of individuals who are speaking.
Tr. 55. In response to the first question, the VE testified that the hypothetical
person would not be able to perform Mr. Johnson’s past work as supervisor or
helper but would be able to perform jobs as a route delivery clerk, meat clerk, and
library page. Tr. 56-57. The ALJ did not list any of Mr. Johnson’s non-severe
impairments when asking this question and did not reference, either directly or
indirectly, his asthma, hypertension, or type two diabetes. The second hypothetical
This individual has the same age, education, and work experience that
we used in the previous hypothetical. And this individual has very
similar functional limitations. There would be no exertional limitation.
But this individual in hypothetical number two would be determined to
be totally deaf. No useful hearing whatsoever. Would there be any
unskilled jobs that the second hypothetical individual could perform?
In response, the VE provided examples of jobs this hypothetical person
could do, such as hand packager, route delivery clerk, meat clerk, and library page.
Tr. 59-60. Again, the ALJ did not reference Mr. Johnson’s non-severe arthritis,
hypertension, or type two diabetes.
In Step Five, the burden shifts to the Commissioner “to show the existence
of other jobs in the national economy which, given the claimant’s impairments, the
claimant can perform.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). In
order for the testimony of a VE to constitute substantial evidence, “the ALJ must pose
a hypothetical question which comprises all of the claimant’s impairments.” Wilson
v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (citing Jones, 190 F.3d at 1229)
(emphasis added); see also Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1220 (11th
Cir. 2001) (finding an ALJ should have included claimant’s complaints of
“headaches, medication history, significant memory or concentration problems,
fatigue, wrist pain, and dizziness” in the hypothetical question posed to the VE.).
In Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1181 (11th Cir. 2011), the
Eleventh Circuit determined that because the ALJ “asked the vocational expert a
hypothetical question that failed to include or otherwise implicitly account for all of
[claimant]’s impairments, the vocational expert’s testimony is not ‘substantial
evidence’ and cannot support the ALJ’s conclusion that [claimant] could perform
significant numbers of jobs in the national economy.”
In finding that Mr. Johnson was not disabled, the ALJ necessarily relied on the
VE’s answers to the first and second hypothetical questions. However, neither of
these questions factored in Mr. Johnson’s impairments of arthritis, type two diabetes,
and hypertension. Therefore, the ALJ’s hypothetical questions were incomplete, and
he erroneously relied on the answers to these questions as posed to support his
The court does not need to reach the question of other objections to the ALJ’s
conclusion if remand is required on an issue raised on appeal. See generally Jackson
v. Bowen, 801 F.2d 1291, 1294 n. 2 (11th Cir. 1991). Thus, it is unnecessary to
address Mr. Johnson’s arguments relating to the ALJ’s credibility determination of
Mr. Johnson’s subjective testimony. (Doc. 10 at 24-27). However, on remand, the
Commissioner shall consider the authorities cited by the parties on this issue.
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the Commissioner did not apply proper legal
standards in reaching her final decision. Accordingly, the decision will be
REVERSED and REMANDED by separate order.
DONE and ORDERED this the 15th day of November, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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