Adams v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/11/2016. (KAM, )

FILED
2016 Aug-11 PM 05:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
MICHAEL SHANE ADAMS,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

)
)
)
)
) Case No.: 3:15-CV-814-VEH
)
)
)
)
)
)

MEMORANDUM OPINION
Plaintiff Michael Adams (“Mr. Adams”) 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 applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).1 Mr. Adams timely pursued and
exhausted his administrative remedies available before the Commissioner. The case

1

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.

is thus ripe for review under 42 U.S.C. § 405(g).2
FACTUAL AND PROCEDURAL HISTORY
Mr. Adams was forty-six years old at the time of his hearing before the
Administrative Law Judge (“ALJ”). (Tr. 28, 217). He has completed the tenth grade.
(Tr. 35). His past work experience includes employment as a commercial truck driver.
(Tr. 286). He claims he became disabled on February 15, 2012, due to lower back
injury. (Tr. 113). His last period of work ended on February 15, 2012. (Tr. 257). Mr.
Adams’s date last insured is December 31, 2016. (Tr. 113).
On February 28, 2012, Mr. Adams protectively filed a Title II application for
a period of disability and DIB. (Tr. 215). He also protectively filed a Title XVI
application for SSI on March 5, 2012. (Tr. 219). On April 27, 2012, the
Commissioner initially denied these claims. (Tr. 135-41). Mr. Adams timely filed a
written request for a hearing on May 2, 2012. (Tr. 142-44). The ALJ conducted two
hearings on the matter, the first hearing was held on June 26, 2013, and the second
supplemental hearing was held on December 16, 2013. (Tr. 73, 26). On January 9,
2014, he issued his opinion concluding Mr. Adams was not disabled and denying him
benefits. (Tr. 20). Mr. Adams timely petitioned the Appeals Council to review the

2

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.
2

decision on January 22, 2014. (Tr. 5). On March 17, 2015, the Appeals Council
issued a denial of review on his claim. (Tr. 1-3).
Mr. Adams filed a Complaint with this court on May 18, 2015, seeking review
of the Commissioner’s determination. (Doc. 1). The Commissioner answered on
September 11, 2015. (Doc. 7). Mr. Adams filed a supporting brief (Doc. 11) on
November 24, 2015, and the Commissioner responded with her own (Doc. 12) on
December 22, 2015. With the parties having fully briefed the matter, the court has
carefully considered the record and reverses the decision of the Commissioner.
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
3

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

3

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.
4

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)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

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 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).
5

The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following findings:
1.

Mr. Adams met the insured status requirements of the Social Security
Act through December 31, 2016. (Tr. 11).

2.

He had not engaged in substantial gainful activity since February 15,
2012, the alleged disability onset date. Id.

3.

He had the following severe impairments: “chronic back pain secondary
to failed back surgery syndrome, chronic pain syndrome, post
laminectomy syndrome, status post arthroscopic laminectomy and
discectomy at L4-5 and L5-S1 level, status post decompression fusion
at the L4-5 and L5-S1 level.” Id.

4.

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. (Tr. 12).

5.

He had the residual functioning capacity (“RFC”) to perform less than
a full range of light work as defined in 20 C.F.R. § 404.1567(b) and
416.967(b). Id.

6.

He was unable to perform any past relevant work. (Tr. 18).

7.

He was born on July 23, 1967, and was 44 years old, which is defined
as younger individual 18-49, on the alleged disability date. Id.

8.

He had a limited education and is able to communicate in English. Id.

9.

Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework
6

supported a finding that he was “not disabled,” whether or not he had
transferable job skills. Id.
10.

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. Id.

11.

Mr. Adams had not been under a disability, as defined in the Social
Security Act, from February 15, 2012, through the date of this decision.
(Tr. 19).

12.

Both Mr. Adams’s DIB and SSI claims were denied. (Tr. 20).
ANALYSIS

I.

Introduction
The court may only 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)).4 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
The court has carefully reviewed the record and finds that this case should be

4

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).
7

remanded for further development. The ALJ’s decision is not supported by substantial
evidence because (1) the ALJ failed to properly discredit Dr. Mark Murphy (“Dr.
Murphy”), and (2) the ALJ improperly relied on a non-examining physician’s opinion
for his disability determination. While the court has endeavored to separate the issues
into their respective subparts, it recognizes the overlap and interrelated nature of
these findings.
II.

The ALJ Did Not Properly Discredit Dr. Murphy’s Treating Source
Opinions.
It is well settled in the Eleventh Circuit that the ALJ must state specifically the

weight accorded to each item of evidence and the reasons for his decision. See Ryan
v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985) (“The ALJ has simply not indicated
what legal standards were applied or what weight was accorded [to] the evidence
considered”); Cowart v. Schweiker, 662 F. 2d 731, 735 (11th Cir. 1981) (“What is
required is that the ALJ state specifically the weight accorded to each item of
evidence and why he reached that decision.”); Hudson v. Heckler, 755 F. 2d 781, 78586 (11th Cir. 1985) (same). The ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor and the failure to do so
adequately is reversible error. Shafarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).
Generally, a treating physician’s opinion will be given substantial weight in

8

determining disability. Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). At
the same time, an ALJ is free to reject a treating physician’s opinion. However, he
must “clearly articulate the reasons for giving less weight to the opinion of a treating
physician, and failure to do so is reversible error.” MacGregor v. Bowen, 786 F.2d
1050, 1053 (11th 1986); see also Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2004) (explaining that a treating physician’s opinion “must be given substantial or
considerable weight unless good cause is shown to the contrary”). Further, the ALJ’s
reasons for discrediting a treating physician’s opinion must be supported by
substantial evidence. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988).
In Mr. Adams’s case, the ALJ attempted to discredit Dr. Murphy’s opinions on
the grounds that Dr. Murphy provided two RFC determinations that were not
identical. Dr. Murphy issued the first RFC in May 2013 and the second one in
December 2013. (Tr. 579, 602). Both RFCs are restricted to a degree that would
preclude Mr. Adams from gainful employment. In a letter dated May 3, 2013, Dr.
Murphy opined that Mr. Adams should avoid:
lifting weight greater than 10 pounds; prolonged standing greater than
15 minutes; prolonged walking no greater than 15 minutes if tolerated;
sit/stand as needed for paresthesia. In an 8 hour day the usual
recommendations are 1 to 2 hours standing, if tolerated, 15 to 30
minutes walking, if tolerated, and up to 4 hours for sitting if required.
(Tr. 579).
9

Additionally, Dr. Murphy stated Mr. Adams’s narcotic use for his pain management
would impair his concentration. Dr. Murphy further opined that repetitive manual
labor would aggravate Mr. Adams’s back pain and lead to Mr. Adam’s need for the
additional use of narcotics to manage his pain. Id.
Seven months later in December 2013, Dr. Murphy issued a medical source
opinion5 that stated Mr. Adams could frequently lift ten pounds and carry fifteen
pounds and occasionally lift twenty pounds and carry twenty-five pounds. (Tr. 602).6
Further, Dr. Murphy opined Mr. Adams could stand for twenty minutes at a time and
2-3 hours out of a work day, walk for ten minutes at a time and 1-2 hours out of a
work day, and sit for twenty minutes and 2-3 hours out of a work day. Id. The ALJ
claimed that these slight variances in function provided good cause to discredit Dr.
Murphy’s medical findings favorable to Mr. Adams’s disability claims. However, an
hour difference in limitations or other minimal differences is not consistent with the
type of contradictions used to sufficiently discredit a treating physician. Cf. Jones v.

5

A medical source opinion is a statement from a physician, psychologist, or other
acceptable medical source that reflects judgments about the nature and severity of a claimant’s
impairment(s), including symptoms, diagnosis and prognosis, what the claimant can still do
despite impairment(s), and the claimant’s physical or mental restrictions. 20 C.F.R. §
404.1527(a)(2).
6

Standing alone Dr. Murphy’s weight restrictions would classify Mr. Adams as capable
of performing Light Work as defined in 20 C.F.R. § 404.1567(b). However, the additional
limitations diagnosed by Dr. Murphy such as needed breaks and lack of concentration would
render Mr. Adams unemployable. (Tr. 109).
10

Dep’t of Health and Human Servs., 941 F.2d 1529, 1533 (“Dr. Freeman’s reports are
contradicted by several physicians . . . Perhaps even more significant is Dr. Freeman’s
apparent agreement with Dr. Sparks that, in Dr. Sparks’ words, there is nothing to
prevent appellant from working at a ‘sitting type job’”); Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (Only three weeks after concluding that
Crawford was unable to work due to lower back pain, Dr. Ruiz noted that Crawford
was ‘improved’ and ‘doing well’ and that he had stated ‘I’m doing great.’”). Also, a
slightly less restricted RFC does not support wholly discrediting Dr. Murphy’s
opinions because such a change in Mr. Adams’s overall functioning simply reflects
a gradual improvement over a seven month period.
The Commissioner states the ALJ was correct in discrediting Dr. Murphy
because “if a treating physician is unsure of the accuracy of his findings and
statements, there is certainly no legal obligation for the ALJ to defer to the treating
physician’s report.” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991).
However, in Edwards, more than mere slight inconsistencies in the physician’s report
existed, as the physician “candidly conceded that he was not sure that he could
objectively assess Claimant Edwards’ condition.” Id. Additionally, the discrepancies
in the physician’s report were differences of four hours in work limitations in the span
of less than a week, 937 F.2d at 548, versus in Mr. Adams’s case in which the slight
11

improvements occurred over a seven month period and such results are entirely
consistent with an effective pain treatment regimen.
Additionally, the Commissioner directs the court to the unpublished Eleventh
Circuit decision of Hacia v. Comm’r of Soc. Sec., 601 F. App’x 783 (11th Cir. 2015),
in which an ALJ’s decision to discredit a treating physician was supported by
substantial evidence. Hacia, 601 F. App’x at 785. However, in Hacia, the physician’s
RFC was internally inconsistent with a report issued the same day as the RFC. Id.
Further, there was evidence that the physician “observed in his treatment notes that
Hacia had been experiencing monthly breakdown seizures but he and his mother had
not been promptly reporting them to [the physician] because they were hoping Hacia
would qualify for disability and did not think he would qualify unless he was having
regular seizures.” Id. at 785 n.1. The Commissioner does not point to similar
conflicting evidence here and based upon this court’s independent review, no such
comparable evidence exists in Dr. Murphy’s treatment records.
Turning to the ALJ’s rejection of Dr. Murphy’s opinion because of its claimed
conclusory nature, the ALJ improperly disregarded several years worth of treatment
records based upon one statement made by Dr. Murphy. The Eleventh Circuit has
emphasized that a “treating physician’s report may be discounted when it is not
accompanied by objective medical evidence or is wholly conclusory.” Edwards, 937
12

F.2d at 583 (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)) (emphasis
added); see Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (Explaining that “good
cause exists when . . . treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records”).7 Here, it is a reversible overreach for the
ALJ to characterize over two years of treatment records as wholly conclusory because
in one sentence of the May 2013 letter, Dr. Murphy opined that “[g]ainful
employment is not likely” for Mr. Adams. (Tr. 579). While the ALJ is not obligated
to accept this vocational conclusion standing alone, he cannot disregard Dr. Murphy’s
entire treatment history of Mr. Adams simply because of the statement. Cf. Moss v.
Colvin, 2016 WL 1046656, at *4 (N.D. Ala. 2016) (“[I]t is worth noting that presence
of a ‘permission slip’ in the record does not mean that the opinion should be ignored.
Instead, it should simply be treated like any other evidence.”).
Moreover, the court finds that the other reasons provided by the ALJ to
discredit Dr. Murphy’s opinions are insufficient. The ALJ stated “[g]iven the
claimant’s allegations of totally disabling symptoms, one might expect to see some
indication in the treatment records of restrictions placed on the claimant by the
treating doctor. However, it was not until the doctor was asked by the claimant’s

7

Although Phillips only says “conclusory,” 357 F.3d at 1241, the Eleventh Circuit cites
to Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) in Phillips, which in turn relies on
Schnorr.
13

attorney that he gave limitations . . .” (Tr. 15). However, the Eleventh Circuit has held
that a physician’s silence regarding work limitations is not sufficient to discredit a
disability claim because “such silence is equally susceptible to either inference,
therefore, no inference should be taken.” Lamb v. Bowen, 847 F.2d 698, 703 (11th
Cir. 1988).
Similarly, the ALJ utilized Mr. Adams’s daily activities to discredit his claims
for disability and Dr. Murphy’s findings. (Tr. 15). The ALJ stated the claimant could:
care for his personal needs independently;8 “prepare[] frozen dinners, sandwiches,
and cereal for himself daily;” go “outside two to three times per day;” operate a
vehicle to drive to the grocery store;9 pay his bills and balance a checkbook; watch
television; and read. (Tr. 15). The ALJ opined “that these activities are inconsistent
with the claimant’s allegation of disabling pain and dysfunction.” Id. However, the
Eleventh Circuit has previously held “[we do not] believe that participation in
everyday activities of short duration, such as housework or fishing, disqualifies a
claimant from disability.” Lewis, 125 F.3d at 1441; see also Flynn v. Heckler, 768

8

The Court notes discrepancies with regards to Mr. Adams being able to dress and care
for himself. Mr. Adams stated at the first evidentiary hearing that his wife had to help dress him
and even assist him when going to the restroom. (Tr. 77-78). But see (Tr. 38). However, the court
believes this is reconciled because at the time of the second evidentiary hearing, Mr. Adams was
no longer living with his wife. (Tr. 40).
9

Mr. Adams stated the grocery store was “a mile from where [he] is staying.” (Tr. 36).
14

F.2d 1273, 1275 (11th Cir. 1985) (ALJ erred by discrediting claimant because she
was “able to read, watch television, embroider, attend church, and drive any
automobile short distances” in addition to performing “housework, light cooking, and
light grocery shopping”).
To the extent the ALJ relied upon Dr. Alan Levine’s (“Dr. Levine”) nonexamining opinion to discredit Dr. Murphy,10 Dr. Levine’s testimony from the hearing
cannot satisfy the good cause requirement. Dr. Levine testified to what he perceived
to be inconsistencies in Mr. Murphy’s treatment records and, based upon his
experience, Dr. Levine opined that Mr. Adams pain “seem[ed] to be a little more than
I would expect.” (Tr. 58-61, 62). In addition, Dr. Levine testified that, based upon his
paper review, he would not have limited Mr. Adams as severely as Dr. Murphy had,
in either the May or December 2013 RFC. (Tr. 60-61). However, a non-examining
physician cannot satisfy the “good cause” requisite needed to reject a treating
physician’s opinion. Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985).
Furthermore, the ALJ accepted Dr. Levine’s non-examining testimony and
expressly discredited the opinion of Dr. Murphy because “Dr. Levine felt the
statement by Dr. Murphy that the claimant was not likely to work appears primarily

10

As discussed infra, Dr. Levine is a Board Certified Orthopaedic Surgeon who testified
at Mr. Adams’s disability hearing, but who never examined, much less treated Mr. Adams.
15

based upon the subjective complaints of pain.” (Tr. 17) (emphasis added). The ALJ’s
adoption of Dr. Levine’s testimony cannot, without more, constitute good cause for
rejecting Dr. Murphy’s vocational opinions about Mr. Adams. Broughton, 776 F.2d
at 962. In addition, Dr. Murphy’s December 2013 RFC clearly reflects that he has not
“completed this form based primarily on the claimant’s subjective complaints” (Tr.
603) and includes detailed references to underlying medical records and further
medical explanations to substantiate his opinion. (Tr. 602-10). Therefore, the record
does not provide substantial evidence to support the ALJ’s conclusion that Dr.
Murphy’s opinion was based primarily on Mr. Adams’s subjective complaints.
When determining weight afforded to a treating physician, the ALJ should
consider the following: the examining relationship, the treatment relationship,
including length of the treatment relationship and nature and extent of the treatment
relationship, supportability by the evidence, consistency, specialization, and any other
factors that support or contradict the doctor’s opinion. 20 C.F.R. § 404.1527(c). The
ALJ’s decision ignores the strength of the treating relationship between Dr. Murphy
and Mr. Adams. Dr. Murphy had not only examined Mr. Adams, but had examined
Mr. Adams on a monthly basis starting in August 2011, a date preceding Mr. Adams’s
alleged disability onset date of February 15, 2012, through December 2013, totaling
thirty-two visits on the record. (Tr. 490-532, 560-77, 612-39). Such a treatment
16

relationship represents the consistency and length of treatment one would expect from
a patient suffering from severe pain. See Chester v. Bowen, 792 F.2d 129, 131 (11th
Cir. 1986) (“The opinion, diagnosis, and medical evidence of the treating physician,
especially when the consultation has been over a considerable period of time, should
be accorded considerable weight.” (citing Perez v. Schweiker, 986 F.2d 997, 1001
(5th Cir. 1981) (emphasis added))). Further, Dr. Murphy should be afforded
additional weight because he is a pain specialist and, an inability to work because of
pain is Mr. Adams’s chief complaint. Thus, the ALJ did not properly discount Dr.
Murphy’s treating source opinions.
III.

The ALJ’s Decision is Not Supported by Substantial Evidence Because the
ALJ Improperly Relied Solely on Dr. Levine’s Non-Examining Opinion
Testimony.11
The opinion of a non-examining physician “is entitled to little weight and taken

alone does not constitute substantial evidence to support an administrative decision.”
Swindle, 914 F.2d at 226 n.3 (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th
Cir. 1985)). When the opinion of an examining physician is compared with an
opinion of a non-examining physician, “[t]he opinion of an examining physician is
generally entitled to more weight than the opinion of a non-examining physician.”

11

The following framework, analysis, and disposition persuasively flow from the
undersigned’s decision in Grier v. Colvin, 117 F. Supp. 3d 1335, 1353-54 (N.D. Ala. 2015).
17

Broughton, 776 F.2d 962 (internal quotation omitted).
However, an ALJ may accord substantial weight to the opinion of a nonexamining physician if the opinion is consistent with examining physician reports.
See Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991) (“[T]he report of a
non-examining doctor is accorded little weight if it contradicts an examining doctor’s
report; such a report, standing alone, cannot constitute substantial evidence. . . . Our
task, then, is to compare the three reports and determine whether [the non-examining
doctor]’s report disagrees with the [examining doctors’ reports].” (citing Spencer v.
Heckler, 765 F.2d 1090, 1093-94 (11th Cir. 1985))). Reports from non-examining
sources must also be supported by other evidence in the record. See 20 C.F.R. §
404.1527(d)(3) (“[B]ecause nonexamining sources have no examining or treating
relationship with [the claimant], the weight will depend on the degree to which [the
physicians] provide supporting explanations for their opinions[.]”). These opinions
will be evaluated by “the degree to which these opinions consider all of the pertinent
evidence in [the claimant’s] claim, including opinions of treating and other examining
sources.” Id.
In Mr. Adams’s case, the ALJ gave “great weight to the opinions of the
Medical Expert, Dr. Alan Levine[,]” a Board Certified Orthopaedic Surgeon who
testified at Mr. Adams’s disability hearing. (Tr. 16). Dr. Levine was not one of Mr.
18

Adams’s treating or examining physicians and, previous to the evidentiary hearing,
had never seen Mr. Adams. (Tr. 48). Based upon his paper review of the record, Dr.
Levine testified that:
orthopedically and objectively the claimant should be capable of lifting
occasionally 20 pounds, frequently 10. [He] felt [Mr. Adams] should be
able to sit six out of eight hours, with customary breaks. [Dr. Levine]
felt [Mr. Adams] should be able to stand four out of eight hours, but [he]
felt not longer than 30 minutes at one time, without the ability of sitting
for one to two minutes. [Dr. Levine] thought he should be able to walk
two out of eight hours, but not longer than 40 minutes at one time
without the ability of sitting through one to two minutes. And [Dr.
Levine] thought [Mr. Adams] should avoid uneven surfaces. [He]
thought [Mr. Adams] could occasionally navigate stairs or ramps with
a railing, could occasionally kneel, occasionally crouch, stoop or bend,
but not repetitively. [He] thought [Mr. Adams] should be able to
avoid–or should avoid–ladders, scaffolds, crawling, heavy laboratory
machinery, unprotected heights, and extreme cold expose. [Dr. Levine]
thought [Mr. Adams] should avoid any type of activity requiring
repetitive twisting. . . . [Dr. Levine] felt [Mr. Adams] really had
unlimited use of the upper extremities for fine and gross manipulation.
However . . . [Mr. Adams] should avoid doing any type of keyboarding
for longer than 30 minutes at one time, without the ability of changing
that position for one to two minutes.
(Tr. 60-61).
Here, Dr. Levine’s opinion testimony was against the weight of the evidence
provided by Dr. Murphy, especially as Dr. Murphy indicated that his December 2013
RFC did not primarily factor in Mr. Adam’s subjective pain allegations. (Tr. 603).
Additionally, while Dr. Levine testified about the inconsistencies he found in Dr.

19

Murphy’s RFC determinations, Dr. Levine never tied his own less-restrictive RFC for
Mr. Adams to any specific evidence contained in the record. Therefore, because Dr.
Levine’s testimony fails to provide an adequate explanation to support his RFC
formulation, it was improper for the ALJ to rely upon it to support his disability
decision. Furthermore, as Dr. Levine is the only doctor who the ALJ assigns “great
weight” to, standing alone, that non-examining evidence is insufficient to constitute
substantial evidence. See Swindle, 914 F.2d at 226 n.3 (A non-treating physician’s
opinion “taken alone does not constitute substantial evidence to support an
administrative decision.”); Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987)
(“The opinions of nonexamining, reviewing physicians . . . when contrary to those of
examining physicians, are entitled to little weight, and standing alone do not
constitute substantial evidence”); Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir.
1985) (“We accord little weight to the opinion of a reviewing physician if it is
contrary to the opinion of the only physician to examine the patient.” (citing Warncke
v. Harris, 619 F.2d 412, 416 (5th Cir. 1980))).
Importantly, the Commissioner does not provide this court with any authority
as to why Dr. Levine’s opinion should be afforded special weight over any other
paper review doctor simply because he attended the evidentiary hearing. The
Commissioner does cite to Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986)
20

(Doc. 12 at 18); however, Mr. Adams’s case is significantly dissimilar from Jones.
In Jones, the physician upon which the ALJ ultimately relied, had at least an
examining relationship of the claimant. Jones, 810 F.2d at 1005. Additionally, the
Eleventh Circuit noted that “several consultants reviewed the medical evidence” and
reached the same conclusion. Id. In sharp contrast here, the ALJ relied only on one
paper review doctor to substantiate his RFC. Finally, in Jones, the ALJ properly
discredited the opinion of the treating physician, which as stated above, has not been
done in Mr. Adams’s case.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the decision of the Commissioner is not supported
by substantial evidence and the ALJ did not apply the correct legal standards.12
Accordingly, the decision will be reversed and remanded by separate order.
DONE and ORDERED this the ___ day of August, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

12

In light of the court’s decision to remand, it does not reach the remaining issues
presented by the parties in this appeal.
21