Sevarit v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 11/22/13. (SAC )
2013 Nov-22 PM 03:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social
) CIVIL ACTION NO. 12-CV-1170-WMA
It has been over fifteen years since the undersigned has been
given the responsibility for reviewing a disability denial by the
Social Security Administration.
When this court took senior
status, it disassociated itself from Social Security appeals.
reasons that need not be stated, this court is again taking Social
Security appeals, this being its first in over fifteen years.
court hopes that its rustiness will not become too apparent and
that its unfamiliarity with the drastically proliferated social
security regulations will not stand in the way of achieving a
Commissioner, with the Administrative Law Judge (“ALJ”), and with
the Appeals Council, the court digresses to express its chagrin and
displeasure with the procedure by which the case arrived in this
As best this court can ascertain from the Record, when a
person claims to be entitled to disability benefits, he files a
claim with the Commissioner.
If the Commissioner agrees with the
claimant, he grants the claim, and the proceeding is closed.
however, the Commissioner denies the claim, the claimant can appeal
Commissioner, but with the right and sometimes the obligation to
receive and consider oral testimony.
If the ALJ overrules the
Commissioner and grants the claim, the proceeding is closed.
however, the ALJ’s decision confirms the Commissioner’s denial, the
claimant can file an appeal to the Appeals Council, which can
affirm the ALJ, or reverse the ALJ and enter its own decision
differing from that of the ALJ, or it can reverse the ALJ and
remand the case to the ALJ with instructions.
In contradiction to the ordinary meaning of words in the
King’s English, the Appeals Council, after looking at the record,
including the evidence received by it after the ALJ’s decision
pronounced as follows on page 1 of the Record:
“WE HAVE DENIED YOUR REQUEST FOR REVIEW.”
If this language is meant to convey to the claimant that he has
lost his appeal, it is a strange way of saying it.
It sounds as if
the Appeals Council is saying that it lacks jurisdiction to hear
Someone flunked Semantics 101.
The Appeals Council
would explain its so-called “denial of the request for review” by
listing possible bases for granting a review, most, if not all, of
which require an actual review of the ALJ’s decision in order to
illogical, so self-contradictory, and so contrary to ordinary
jurisprudential and procedural principles, as to be the subject of
this court’s criticism and derision.
Why could not the Appeals
Council simply say that the ALJ’s decision is “Affirmed”?
would be what any appellate tribunal would say when rejecting an
When the Appeals Council here said, “We
will review your case for any of the following reasons,” and then
listed reasons, including that “the decision is not supported by
substantial evidence,” the Appeals Council was necessarily saying
that it had examined the evidence and found it to be substantial
enough to justify the conclusion reached by the ALJ.
This is a
strange and puzzling way to admit to having reviewed something
without granting a review of it.
This way of expressing what has
gone on makes absolutely no sense.
Not being called upon in this case to straighten out this
total semantic confusion, the court will simply deem the so-called
denial of review to be an affirmance of the ALJ after having
conducted an appropriate review. Of course, it would not hurt this
court’s feelings if the Commissioner should decide to amend the
regulations to substitute for the strange procedure employed here
a procedure and a way to explain what is happening that makes
Nirandorn Sevarit (“plaintiff”) brings this action pursuant to
42 U.S.C. § 405(g) for a judicial review of a final adverse
decision that denied his application for Supplemental Security
Plaintiff timely pursued and exhausted the administrative
Based on the Record and the briefs submitted by
the parties, the court finds that the Commissioner’s decision must
be reversed and the case remanded to the Commissioner1 for further
STANDARD OF REVIEW
This court’s sole function is to determine whether substantial
evidence supports the Commissioner’s findings of fact and whether
proper legal standards were employed. Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983).
To that end, this court “must
scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Id.
evidence as a reasonable person would accept as adequate to support
a conclusion.” Id.
This court may not decide the facts anew,
When a case is remanded by a district court to the
Commissioner, 20 C.F.R. § 404.983 permits the Appeals Council to act
on behalf of the Commissioner and either make the determination itself
or remand the case to an administrative law judge with instructions.
reweigh the evidence, or substitute its judgment for that of the
decision, the court must affirm the decision if it is supported by
substantial evidence. Id.
Unlike this deferential review standard that must be used in
evaluating the Commissioner’s factual findings, the Commissioner’s
conclusions of law are not presumptively valid. Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990).
The decision must be
reversed if the Commissioner failed “to apply the correct law or to
determining that the proper legal analysis has been conducted.”
Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
This requirement that the Commissioner provide sufficient reasoning
can, of course, become a question of law for the reviewing court.
See Martin, 894 F.2d at 1529.
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must be
Disability is defined as the “inability to engage in
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 months....” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(I). For the purposes of evaluating
entitlement to disability benefits, “physical or mental impairment”
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Social Security regulations outline a five-step process for
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
Based on this
five-step process, the Commissioner reaches a conclusion about the
claimant’s disability status.
As stated above, the Commissioner’s
initial decision may be appealed to an administrative law judge,
then to the Appeals Council, and then to a district court, all of
Commissioner must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).
the Commissioner finds that the claimant engages in substantial
gainful activity, the claimant cannot claim disability, and the
inquiry ends. 20 C.F.R. § 404.1520(b).
Second, the Commissioner
must determine whether the claimant has a medically determinable
significantly limit the claimant's ability to perform basic work
impairment, the claimant cannot successfully claim disability. Id.
Third, the Commissioner must determine whether the claimant's
impairment meets or equals the criteria for an impairment in the
Listing of Impairments.2 See 20 C.F.R. §§ 404.1520(d), 404.1525,
If such criteria are met, the claimant must be declared
disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not meet the requirements for being
declared disabled under the third step, the Commissioner may still
find disability under the final two steps of the process.
claimant's residual functional capacity (“RFC”), which refers to
the claimant's ability to work despite the impairment. 20 C.F.R. §
When determining a claimant's RFC, the Commissioner
considers all evidence relevant to impairment.
In the fourth step, the Commissioner determines whether the
claimant's RFC allows the claimant to perform past relevant work.
20 C.F.R. § 404.1520(a)(4)(iv).
If the claimant is found capable
of performing past relevant work, the claimant cannot successfully
claim disability. Id.
If the Commissioner finds the claimant
unable to perform past relevant work, the process continues to the
fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v).
Commissioner to determine whether the claimant is able to perform
education, and work experience. 20 C.F.R. § 404.1520(g).
The Listing of Impairments at 20 C.F.R. Part 404, Subpart P,
Appendix 1 is used to make determinations of disability based upon the
presence of impairments that are considered severe enough to prevent a
person from doing any gainful activity. 20 C.F.R. § 404.1525.
Commissioner to prove the existence, in significant numbers, of
jobs in the national economy that the claimant can do in view of
his or her RFC, age, education, and work experience. 20 C.F.R. §§
404.1520(g), 404.1560(c). When determining whether jobs exist that
the claimant can perform, the Commissioner may elicit testimony
from a vocational expert (“VE”) by asking the VE hypothetical
questions to establish which jobs in the national economy could by
performed by someone with the same limitations as the claimant. 20
required when a claimant cannot perform the full range of work at
a particular exertional level or has a non-exertional impairment
such as pain, fatigue, or mental illness.3 Foot v. Chater, 67 F.3d
1553, 1558-59 (11th Cir. 1995).
In the present case, the ALJ determined that plaintiff was not
disabled under the criteria of the first three steps.
substantial gainful activity and by having severe impairments, the
ALJ concluded that plaintiff’s impairments did not meet or equal an
impairment in the Listing of Impairments. R. 19.
the fourth and fifth steps, the ALJ assessed that plaintiff had the
The Medical-Vocational Guidelines, (the “grids”) 20 C.F.R.
Part 404, Subpart P, Appendix 2, are used to make determinations of
disability based on vocational factors and the RFC when the claimant
is unable to perform his relevant past work. § 200.00(a). Such
determinations, however, are only conclusive when all criteria of a
particular rule are met. Id.
RFC to perform “sedentary work as defined in 20 C.F.R. § 416.967(a)
communications in English.” R. 19.
Employing this RFC in the
fourth step, the ALJ found that plaintiff was unable to perform his
past relevant work. R. 22.
In the fifth step, based on the RFC and
VE testimony, the ALJ found that plaintiff could perform other jobs
in the national economy and so was not disabled. R. 19-20, 23.
Plaintiff was seen by Dr. John V. Vanore at the Gadsden Foot
Clinic on January 14, 2008. R. 200-03.
Plaintiff reported that he
had congenital foot deformities and past surgeries in his native
Thailand. R. 202.
Dr. Vanore observed that plaintiff’s right leg
appeared to be shorter than the left, and there was tenderness on
examination of plaintiff’s feet. R. 200. Dr. Vanore told plaintiff
his symptoms were likely caused by congenital pathology. R. 200.
Dr. Vanore recommended immobilization with an ankle brace and noted
that surgical intervention might be considered. R. 200.
25, 2008, Dr. Vanore performed a hammertoe repair and digital
exostectomy of the fifth toes on both of plaintiff’s feet. R. 159.
reconstructive surgery to be performed by Dr. Camasta. R. 194.
October 9, 2008. R. 219.
Following surgery, Dr. Camasta’s records
indicate that plaintiff improved but continued to have problems
with pain and was “still not doing that great.” R. 213-15.
April 15, 2009, Dr. Camasta noted that plaintiff “still has a lot
of pain when he stands or walks.” R. 213.
Dr. Camasta found that
plaintiff still had significant foot deformities and arthritis in
all of his other joints. R. 213.
He diagnosed that plaintiff had
“[a]rthritis in the remaining joints post clubfoot with residual
deformities.” R. 213.
Plaintiff on March 2, 2010, saw Dr. Jimmy Oguntuyo, whose
report states that plaintiff continued to have hand swelling with
associated pain. R. 238.
Plaintiff rated his pain as 6 to 8 on a
scale of 1 to 10. R. 238.
He reported that the pain was aggravated
by activities and relieved by NSAIDs and pain medicines. R. 238.
Dr. Oguntuyo diagnosed plaintiff with uncontrolled high blood
pressure, rheumatoid arthritis, chronic hepatitis C, and fatigue.
Dr. Oguntuyo prescribed Celebrex, methotrexate, and
Lortab. R. 239.
Plaintiff next saw Dr. Oguntuyo on August 21,
2010, complaining of pain in his finger and swelling. R. 236.
Plaintiff again rated the pain as 6 to 8 on a scale of 1 to 10 and
reported that it was aggravated by activities and relieved by rest.
Plaintiff returned to see Dr. Vanore on August 23, 2010,
complaining of pain in his left leg. R. 233.
Dr. Vanore found that
plaintiff had “poor joint mobility on the left side,” and was
“tender in the hindfoot area with stressing.” R. 233.
diagnosed plaintiff with chronic residual left foot pain following
applying for disability, and “agreed that he is disabled due to his
feet.” R. 233.
Dr. Oguntuyo wrote a letter on September 18, 2010, separate
hypertension, rheumatoid arthritis, chronic hepatitis C, fatigue,
congenital club feet, and congenital club foot. R. 235.
letter, Dr. Oguntuyo said that “[t]he ankle pain and Rheumatoid
arthritis are incapacitating and [plaintiff] cannot be gainfully
employed.” R. 235.
After the ALJ’s adverse decision, plaintiff appealed and
submitted new evidence to the Appeals Council.
The new evidence
included a report from Dr. Oguntuyo dated February 15, 2010. R.
The report states that plaintiff presented with “diffused
joint pain” in the hands and elevated blood pressure. R. 241.
Oguntuyo found mild bilateral lower extremity swelling and joint
pain, worse in the hands with associated swelling of the hands and
knuckles. R. 241.
1 to 10. R. 241.
Plaintiff rated the pain as 6 to 8 on a scale of
Dr. Oguntuyo assessed the pain as “incapacitating
to [the] point of not being able to grip well.” R. 241.
diagnosed hypertension, multiple site osteoarthritis, left ankle
surgery, and fatigue. R. 242.
Plaintiff also submitted as new evidence two reports from Dr.
Daniel S. Prince, a rheumatologist. R. 246-50.
Dr. Prince saw
plaintiff on November 3, 2010 upon referral from Dr. Vanore. R.
246. The report from that visit states that plaintiff “has pain in
his left wrist and his left fourth finger and has difficulty with
grip and pinch.” R. 246.
It notes that plaintiff had congenital
club foot deformities, and that the surgeries “for both feet have
failed.” R. 246. On physical examination, Dr. Prince observed that
inflammatory synovitis.” R. 247.
Dr. Prince did not believe that
plaintiff had rheumatoid arthritis and thought his symptoms likely
related to hepatitis C. R. 247.
Dr. Prince diagnosed seronegative
medications, and prescribed Lortab for pain. R. 247. Plaintiff saw
Dr. Prince again on April 6, 2011, and the report from that visit
indicates that plaintiff “still has trigger finger problems in his
right hand in the ring finger and the third finger.” R. 249.
physical examination, Dr. Prince found that “[b]oth wrists and the
right third flexor tendon do have a trigger finger problem.” R.
There was also “some puffiness and tenderness in some of the
[large joints in the hand at the base of the fingers].”4 R. 249.
Dr. Prince references the “MP joints.” As explained by the
American Society for Surgery of the Hand,“[t]he large joints in the
hand at the base of each finger are known as the metacarpophalangeal
(MP, or MCP) joints.” THE AMERICAN SOCIETY FOR SURGERY OF THE HAND,
Plaintiff claims that he first became disabled on June 1,
2008, because of severe pain caused by congenital defects in his
feet and arthritis in his hands. R. 17, 21, 36-40. He raises three
issues on this appeal: (1) whether the Appeals Council erred in
denying review of the ALJ’s decision (whatever a “denial of review”
means); (2) whether the ALJ erred in failing to ask the VE to
consider the vocational impact of impairments to his left hand; and
Appeals Council’s “Denial of Review”
Plaintiff submitted new evidence to the Appeals Council in
connection with his request for review of the ALJ’s decision. That
new evidence consists of a report from Dr. Oguntuyo5 dated February
15, 2010, and reports from Dr. Daniel S. Prince dated November 3,
2010, and April 6, 2011.
Plaintiff argues that this new evidence
shows more limitations in the use his hands than were found by the
(last visited Nov. 19, 2013).
The Appeals Council lists this report as medical records from
Dr. O. Akisanya. R. 4. However, the handwriting and signature match
those on Dr. Oguntuyo’s other reports. See R. 237, 239. Also, the
laboratory reports attached to the report submitted to the Appeals
Council list Dr. Jimmy Oguntuyo as the physician. R. 243-44.
If a claimant submits new evidence to the Appeals Council, the
regulations require the Appeals Council to “review the case if it
finds that the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of
record.” 20 C.F.R. § 404.970(b).
The Appeals Council considered
both the old and the new evidence but found that the evidence did
not provide a basis for changing the ALJ’s decision. R. 1-2.
Plaintiff argues that the Appeals Council erred in not granting
benefits or ordering new proceedings based on the new evidence.
A claimant may submit new evidence at each step of the
administrative review process. 20 C.F.R. § 404.900(b) (“In each
step of the review process, you may present any information you
feel is helpful to your case.”).
The Appeals Council is required
to consider new and material evidence if it relates to the period
on or before the ALJ’s decision. 20 C.F.R. § 404.970(b).
claimant submits evidence that does not relate to the period on or
before the ALJ’s decision, the Appeals Council must return the
evidence to the claimant with an explanation of why the evidence is
being returned. 20 C.F.R. § 404.976(b).
The Appeals Council did
not return the new evidence submitted by the claimant in this case.
Therefore, it presumably found that the evidence related to the
period on or before the ALJ’s decision.
Because plaintiff properly presented evidence to the Appeals
Council, which actually considered it, the said new evidence forms
part of the administrative record. Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1269 (11th Cir. 2007).
In examining on
appeal the decision of the Appeals Council “to deny review,” this
court “must consider whether that new evidence renders the denial
of benefits erroneous.” Id. at 1262.
Therefore, this court must
consider whether the Appeals Council correctly concluded that the
ALJ’s decision was supported by substantial evidence and was not
contrary to the great weight of the evidence in the administrative
record as a whole, including the new evidence presented to the
Appeals Council. See id. at 1266-67 (remanding to the district
court to determine whether the Appeals Council correctly found the
ALJ’s decision was not contrary to the weight of the evidence).
Plaintiff argues that the evidence submitted to the Appeals
Council shows limitations in the use of his hands that prevent him
from performing the sedentary jobs identified by the VE.
testified that plaintiff would be able to perform three types of
inspector/sorter; product assembler; and machine feeder/operator.
approximately 1/3 to 2/3 of the work time. See DICOT 713.687-018,
(G.P.O.); DICOT 521.687-086, 1991 WL 674226 (G.P.O.).
The Dictionary of Occupational Titles is published by the
Department of Labor and used by the Commissioner to take
administrative notice of the presence of jobs in the national economy.
20 C.F.R. §§ 404.1567(d), 416.967(d).
“seizing, holding, grasping, turning or otherwise working primarily
with the whole hand or hands.” SSR 85-15, 1985 WL 56857, *7
Two of the three jobs, inspector/sorter and product
assembler, also require frequent fingering. See DICOT 713.687-018,
Fingering “involves picking, pinching, or otherwise
working primarily with the fingers.” SSR 85-15, 1985 WL 56857, *7
This court cannot separate “pinching” from “gripping.”
At the ALJ hearing, plaintiff testified that his rheumatoid
arthritis prevented him from bending his finger. R. 39.
significant pain and arthritis in his hands. R. 235, 236, 238.
spite of this evidence, the ALJ found no limitations on plaintiff’s
use of his hands in the RFC finding. R. 19.
The only reasoning
rheumatoid arthritis, but these are in his left, non-dominant
hand.” R. 22.
The ALJ did not ask the VE to consider any
limitations in the use of plaintiff’s hands, whether bilateral or
limited to the left hand. R. 41-42.
The new evidence presented to the Appeals Council includes a
report from Dr. Oguntuyo dated prior to the ALJ’s decision.
plaintiff presented with “diffused joint pain.” R. 241.
said that the pain was worse in his hands, and Dr. Oguntuyo noted
Plaintiff rated the pain as 6 to 8 on a scale of 1 to 10. R. 241.
Dr. Oguntuyo concluded that the pain was “incapacitating to [the]
point of not being able to grip well.” R. 241.
The Appeals Council also had before it the new evidence
consisting of two reports from Dr. Prince, plaintiff’s treating
rheumatologist. R. 246-247.
Dr. Prince’s report of November 3,
2010, says that plaintiff reported pain in his left wrist and left
fourth finger and also difficulty with gripping and pinching. R.
On physical examination, Dr. Prince found that plaintiff’s
left fourth finger was “in trouble with flexion/extension.” R. 247.
The second report from Dr. Prince, dated April 6, 2011, states that
plaintiff reported continuing “trigger finger problems in his right
hand in the ring finger and the third finger.” R. 249.
examination, Dr. Prince found that “[b]oth wrists and the right
third flexor tendon do have a trigger finger problem” and observed
“some puffiness and tenderness in some of the [large joints in the
hand at the base of the fingers].” R. 249; see supra note 3.
This new evidence, together with the evidence submitted to the
ALJ, shows that plaintiff had swelling in his hands and knuckles
beginning in February 2010 with associated pain “incapacitating to
the point of not being able to grip well.” R. 241.
Council had before it reports from February 2010, March 2010,
August 2010, September 2010, and November 2010, all related to
plaintiff’s hand impairment. R. 247, 235, 236, 238.
without consideration of Dr. Prince’s April 2011 report, the record
before the Appeals Council showed that plaintiff had significant
problems with his hands caused by arthritis.7
Based upon the record as a whole, this court concludes that
substantial evidence does not support the ALJ’s RFC finding.
reasonable and is not supported by substantial evidence in light of
the significant and uncontradicted medical evidence that plaintiff
was limited in his ability to grip and use his fingers prior to the
date of the ALJ’s decision.
Therefore, the Appeals Council erred
in failing to disagree with the ALJ by failing to grant “a review.“
assessing plaintiff’s RFC.
Failure to Have VE Consider Vocational Impact of Hands
Plaintiff further argues that the ALJ erred in failing to ask
the VE to consider the vocational impact of the impairments to
plaintiff’s left hand based on the record at that time.
The Commissioner argues that Dr. Prince’s April 2011 report
does not relate to the period on or before the date of the ALJ’s
decision. Because the other evidence submitted to the Appeals Council
is sufficient to render the ALJ’s decision erroneous, the court need
not decide whether the April 2011 report so relates. The Commissioner
will be in a better position to determine its relevance on remand.
plaintiff’s hands, apparently because the ALJ found that plaintiff
only had symptoms in his left, nondominant hand. R. 22.
argues that SSR 96-9p requires the ALJ to question the VE about the
impairment to his nondominant left hand.
That ruling recognizes
that “[m]ost unskilled sedentary jobs require good use of both
hands and the fingers; i.e., bilateral manual dexterity.”
9p, 1996 WL 374185, *8 (S.S.A.).
SSR 96-9p also provides that “any
significant manipulative limitation of an individual’s ability to
handle and work with small objects with both hands will result in
a significant erosion of the unskilled sedentary occupational
The ruling recognizes that consulting a VE may prove
useful “[w]hen the limitation is less significant, especially if
the limitation is in the non-dominant hand.” Id.
Because the case must be remanded for further proceedings,
which will include consideration of the evidence submitted to the
Appeals Council, it is not necessary to decide whether the ALJ
erred in failing to mention limitations in plaintiff’s use of his
nondominant hand based only on the evidence available to the ALJ.
procedures set forth in SSR 96-9p are followed.
ALJ’s Consideration of Treating Physicians’ Opinions
Plaintiff next argues that the ALJ did not properly consider
the opinions of his treating physicians.
Under the Commissioner’s
controlling weight if well supported “by medically acceptable
clinical and laboratory diagnostic techniques” and not inconsistent
In considering whether an ALJ has
properly addressed a treating physician’s opinion, “[t]he law of
this circuit is clear that the testimony of a treating physician
must be given substantial or considerable weight unless ‘good
cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997) (citations omitted).
The ALJ must clearly
opinion. Id. (“The ALJ must clearly articulate the reasons for
giving less weight to the opinion of a treating physician, and the
failure to do so is reversible error.”)
Plaintiff’s treating physician, Dr. Oguntuyo, wrote a letter
on September 18, 2010, stating that plaintiff’s “ankle pain and
Rheumatoid arthritis are incapacitating and he cannot be gainfully
employed.” R. 235. The ALJ described this letter and observed that
Dr. Vanore “agreed in his notes dated August 23, 2010, that the
claimant was disabled due to his feet.” R. 21.
However, the ALJ
The ALJ’s discussion of these opinions is as follows:
An opinion that a claimant is disabled is not a medical
opinion. Medical opinions are statements from physicians
and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of
a claimant’s impairment(s)..., what the claimant can
still do despite his or her impairment(s), and the
claimant’s physical and mental restrictions. An opinion
that a person is disabled is reserved for the
Commissioner because it is an administrative finding that
is dispositive of a case.... A statement by a medical
source that a claimant is “disabled” or “unable to work”
does not mean that the Social Security Administration
will determine that the claimant is disabled. (20 C.F.R.
The ALJ correctly characterized Dr. Oguntuyo’s statement
that plaintiff “cannot be gainfully employed,” and
statement that plaintiff “is disabled due to his feet,” as not
constituting “medical opinions” as defined in the regulations. The
regulations provide that doctors’ opinions are not medical opinions
if given on questions reserved to the Commissioner, particularly
whether a person is disabled or unable to work. 20 C.F.R. §§
However, such statements must still be
controlling weight. SSR 96-5p, 1996 WL 374183, *2 (S.S.A.) (“[O]ur
rules provide that adjudicators must always carefully consider
medical source opinions about any issue, including opinions about
issues that are reserved to the Commissioner.”).
More importantly, the ALJ failed properly to consider the
remainder of Dr. Oguntuyo’s opinion, which did not invade the
province of the Commissioner.
incapacitating....” R. 235.
Dr. Oguntuyo’s letter states that
In Winschel v. Commissioner of Social
Security, the Commissioner argued that the ALJ was not required to
consider the reports of the claimant’s treating physician because
they did not contain a medical opinion. 631 F.3d 1176, 1179 (11th
description of Winschel’s symptoms, a diagnosis, and a judgment
about the severity of his impairments.” Id. (citing 20 C.F.R. §§
The regulation cited by Winschel
medical opinions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a).
plaintiff’s pain and rheumatoid arthritis in his hands, namely that
they are incapacitating.
the ALJ must consider.
That judgment is a medical opinion that
The ALJ in the instant case was, in this
court’s opinion, hypertechnical.
If the ALJ considered and rejected Dr. Oguntuyo’s opinions for
any reason other than he did not consider them medical opinions,
such a reason cannot be found in his decision.
Other grounds may
exist for rejecting or giving little weight to Dr. Oguntuyo’s
opinions, but in the absence of articulated reasons, the court
consideration they deserved, something crucial to a decision as to
substantial evidence. See Winschel, 631 F.3d at 1176 (“[W]ithout
clearly articulated grounds for [rejecting the treating physician’s
medical opinion], we cannot determine whether the ALJ’s conclusions
were rational and supported by substantial evidence.”).
The court’s inability to assess whether the ALJ properly
considered Dr. Oguntuyo’s opinions matters because the said opinion
included the treating physician’s findings about the severity and
impact of plaintiff’s rheumatoid arthritis, which primarily affects
his hands. The ALJ found no restrictions on the use of plaintiff’s
strongly suggest that plaintiff’s rheumatoid arthritis imposes
significant limitations on the use of his hands.
Because the ALJ
failed to articulate reasons for rejecting Dr. Oguntuyo’s opinions
about the severity of plaintiff’s impairments, the Commissioner’s
decision must be reversed.
The court concludes that the Appeals Council erred in denying
a full review of the ALJ’s decision and that the ALJ did not
properly consider the opinions of plaintiff’s treating physicians.
Therefore, the ALJ’s decision will be reversed and remanded to the
Commissioner for further proceedings, in which the Appeals Council
or ALJ shall explicitly consider and explain the weight to be
accorded to the medical opinions of plaintiff’s treating physicians
regarding the severity of plaintiff’s impairments.
be entered accordingly.
An order will
DONE this 22nd day of November, 2013.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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