Sevarit v. Social Security Administration, Commissioner

Filing 8

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 11/22/13. (SAC )

FILED
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
MIDDLE DIVISION
NIRANDORN SEVARIT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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)
)
)
) CIVIL ACTION NO. 12-CV-1170-WMA
)
)
)
)
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MEMORANDUM OPINION
I. PRELIMINARIES
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.

For

reasons that need not be stated, this court is again taking Social
Security appeals, this being its first in over fifteen years.

The

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
correct result.
Before

undertaking

to

express

its

disagreement

with

the

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
court.

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.

If,

however, the Commissioner denies the claim, the claimant can appeal
to

an

ALJ,

evidentiary

who

then

materials

conducts

a

submitted

de
by

novo
the

hearing,

claimant

using

and

by

the
the

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.

If,

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
the appeal.

Someone flunked Semantics 101.

The Appeals Council

would explain its so-called “denial of the request for review” by

2

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
reach

the

so-called

decision

“not

to

review.”

This

is

so

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”?

This

would be what any appellate tribunal would say when rejecting an
appellants’ arguments.

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

3

a procedure and a way to explain what is happening that makes
sense.
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
Income.

Plaintiff timely pursued and exhausted the administrative

remedies

available

Administration.

to

him

before

the

Social

Security

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
proceedings.
II.

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.
(citations

omitted).

Substantial

evidence

is

“such

relevant

evidence as a reasonable person would accept as adequate to support
a conclusion.” Id.

This court may not decide the facts anew,

1

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.

4

reweigh the evidence, or substitute its judgment for that of the
Commissioner.

Id.

Even

if

preponderance

of

evidence

this

court

weighs

should

against

the

find

that

the

Commissioner’s

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
provide

the

reviewing

court

with

sufficient

reasoning

for

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.
III.

STATUTORY AND REGULATORY FRAMEWORK

To qualify for disability benefits, a claimant must be
“disabled.”
any

Disability is defined as the “inability to engage in

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 months....” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(I). For the purposes of evaluating
5

entitlement to disability benefits, “physical or mental impairment”
is

defined

as

“an

physiological,
demonstrable

impairment

or

by

that

psychological

medically

results

from

anatomical,

abnormalities

acceptable

clinical

which

and

are

laboratory

diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Social Security regulations outline a five-step process for
determining

whether

a

claimant

is

disabled.

§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).

20

C.F.R.

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
which

adhere

to

the

same

five-step

process.

First,

the

Commissioner must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).

If

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
impairment

or

a

combination

of

medical

impairments

that

significantly limit the claimant's ability to perform basic work
activities.

20

C.F.R.

§

404.1520(a)(4)(ii).

Absent

such

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
6

Listing of Impairments.2 See 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526.

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.
undertaking

these

steps,

the

Commissioner

must

Before

determine

the

claimant's residual functional capacity (“RFC”), which refers to
the claimant's ability to work despite the impairment. 20 C.F.R. §
404.1520(e).

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).
The

fifth

and

final

step

of

the

process

requires

the

Commissioner to determine whether the claimant is able to perform
any

other

work

commensurate

with

the

claimant’s

RFC,

education, and work experience. 20 C.F.R. § 404.1520(g).

2

age,

At this

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.

7

point,

the

burden

of

proof

shifts

from

the

claimant

to

the

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
C.F.R.

§§

404.1520(g),

404.1560(c).

Vocational

testimony

is

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.
plaintiff

satisfied

the

first

two

steps

by

not

Although

engaging

in

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.

Preparatory to

the fourth and fifth steps, the ALJ assessed that plaintiff had the

3

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.

8

RFC to perform “sedentary work as defined in 20 C.F.R. § 416.967(a)
except

his

work

would

not

require

communications in English.” R. 19.

a

significant

amount

of

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.
IV.

FACTUAL BACKGROUND

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.

On July

25, 2008, Dr. Vanore performed a hammertoe repair and digital
exostectomy of the fifth toes on both of plaintiff’s feet. R. 159.
Plaintiff

continued

to

see

Dr.

Vanore

while

awaiting

major

reconstructive surgery to be performed by Dr. Camasta. R. 194.
Dr.

Craig

Camasta

metatarsophalangeal

joint

October 9, 2008. R. 219.

performed
fusion

of

a

subtalar

plaintiff’s

and

left

first

foot

on

Following surgery, Dr. Camasta’s records
9

indicate that plaintiff improved but continued to have problems
with pain and was “still not doing that great.” R. 213-15.

On

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.
R. 239.

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.
R. 236.
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.
10

Dr. Vanore

diagnosed plaintiff with chronic residual left foot pain following
surgeries.

R.

233.

Dr.

Vanore

commented

that

plaintiff was

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
from

his

routine

office

reports,

stating

that

plaintiff

had

hypertension, rheumatoid arthritis, chronic hepatitis C, fatigue,
bilateral

ankle

pain

following

ankle

surgery

secondary

congenital club feet, and congenital club foot. R. 235.

to

In the

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.
241-44.

The report states that plaintiff presented with “diffused

joint pain” in the hands and elevated blood pressure. R. 241.

Dr.

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.

He

diagnosed hypertension, multiple site osteoarthritis, left ankle
surgery, and fatigue. R. 242.

11

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
plaintiff’s

“left

flexion/extension,

fourth
but

finger

there

is

inflammatory synovitis.” R. 247.

is

really

in
no

trouble
evidence

with
of

an

Dr. Prince did not believe that

plaintiff had rheumatoid arthritis and thought his symptoms likely
related to hepatitis C. R. 247.
arthritis

secondary

to

Dr. Prince diagnosed seronegative

hepatitis

C,

changed

plaintiff’s

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.

On

physical examination, Dr. Prince found that “[b]oth wrists and the
right third flexor tendon do have a trigger finger problem.” R.
249.

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.

4

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,

12

V.

DISCUSSION

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
(3) whether

the

ALJ

properly

considered

the

opinions

of

his

treating physicians.
(1)

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
ALJ.

http://www.assh.org/Public/HandConditions/Pages/ArthritisMPJoint.aspx
(last visited Nov. 19, 2013).
5

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.

13

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).

If a

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

14

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.

The VE

testified that plaintiff would be able to perform three types of
jobs

in

the

Dictionary

of

Occupational

(“DOT”):6

Titles

inspector/sorter; product assembler; and machine feeder/operator.
R.

41.

All

three

of

these

jobs

require

frequent

handling,

approximately 1/3 to 2/3 of the work time. See DICOT 713.687-018,
1991

WL

679271

(G.P.O.);

DICOT

690.685-194,

1991

WL

(G.P.O.); DICOT 521.687-086, 1991 WL 674226 (G.P.O.).
6

678545
Social

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).

15

Security

Ruling

(“SSR”)

85-15

provides

that

handling

means

“seizing, holding, grasping, turning or otherwise working primarily
with the whole hand or hands.” SSR 85-15, 1985 WL 56857, *7
(S.S.A.).

Two of the three jobs, inspector/sorter and product

assembler, also require frequent fingering. See DICOT 713.687-018,
1991

WL

(G.P.O.).

679271

(G.P.O.);

DICOT

521.687-086,

1991

WL

674226

Fingering “involves picking, pinching, or otherwise

working primarily with the fingers.” SSR 85-15, 1985 WL 56857, *7
(S.S.A.).

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.
medical

assessments

prior

to

the

ALJ’s

decision

Three

indicated

significant pain and arthritis in his hands. R. 235, 236, 238.

In

spite of this evidence, the ALJ found no limitations on plaintiff’s
use of his hands in the RFC finding. R. 19.
provided

is

that

plaintiff

“has

the

The only reasoning

beginning

symptoms

of

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.
newly

submitted

report,

dated

February

15,

2010,

plaintiff presented with “diffused joint pain.” R. 241.

16

shows

The
that

Plaintiff

said that the pain was worse in his hands, and Dr. Oguntuyo noted
associated

“swelling

of

the

hands

[and]

knuckles.”

R.

241.

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.
246.

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.

On physical

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.

The Appeals

Council had before it reports from February 2010, March 2010,

17

August 2010, September 2010, and November 2010, all related to
plaintiff’s hand impairment. R. 247, 235, 236, 238.

Thus, even

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.

The

ALJ’s

not

finding

of

no

limitation

in

plaintiff’s

hands

is

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.“
On

remand,

including

the
the

Commissioner
evidence

can

submitted

consider
to

the

the

entire

Appeals

record,

Council,

in

assessing plaintiff’s RFC.
(2)

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.

7

The ALJ’s

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.

18

RFC

finding

did

not

mention

any

limitations

on

the

use

of

plaintiff’s hands, apparently because the ALJ found that plaintiff
only had symptoms in his left, nondominant hand. R. 22.

Plaintiff

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-

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
base.” Id.

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.
However,

on

remand

the

Commissioner

should

ensure

that

the

procedures set forth in SSR 96-9p are followed.
(3)

ALJ’s Consideration of Treating Physicians’ Opinions
Plaintiff next argues that the ALJ did not properly consider

the opinions of his treating physicians.
19

Under the Commissioner’s

regulations,

a

treating

physician’s

opinion

will

be

given

controlling weight if well supported “by medically acceptable
clinical and laboratory diagnostic techniques” and not inconsistent
with other

substantial

evidence

404.1527(c)(2), 416.927(c)(2).

in

the

record. 20

C.F.R.

§§

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).
articulate

any

reasons

for

rejecting

a

The ALJ must clearly
treating

physician’s

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.
concluded
opinions.”

that

these

statements

did

not

However, the ALJ

qualify

as

“medical

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
20

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.
§ 404.1527(e)).
R. 21.

The ALJ correctly characterized Dr. Oguntuyo’s statement

that plaintiff “cannot be gainfully employed,” and

Dr. Vanore’s

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. §§
404.1527(d), 927(d).
considered

even

However, such statements must still be

though

they

are

not

medical

opinions

with

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.
plaintiff’s

“ankle

pain

incapacitating....” R. 235.

and

Dr. Oguntuyo’s letter states that
the

Rheumatoid

arthritis

are

In Winschel v. Commissioner of Social

Security, the Commissioner argued that the ALJ was not required to
21

consider the reports of the claimant’s treating physician because
they did not contain a medical opinion. 631 F.3d 1176, 1179 (11th
Cir.

2011).

argument.

The

Id.

Winschel

It

court

determined

rejected

that

the

the

Commissioner’s

reports

contained

“a

description of Winschel’s symptoms, a diagnosis, and a judgment
about the severity of his impairments.” Id. (citing 20 C.F.R. §§
1527(a)(2), 416.927(a)(2)).

The regulation cited by Winschel

provides

that

“judgments

severity

of

a

physician’s

your

impairment(s),

about

including

the

your

nature

and

symptoms”

are

medical opinions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a).
Oguntuyo’s

letter

contains

a

judgment

about

the

severity

Dr.
of

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
cannot

determine

whether

the

ALJ

gave

the

opinions

the

consideration they deserved, something crucial to a decision as to
whether

the

ALJ’s

decision

is

reasonable

and

supported

by

substantial evidence. See Winschel, 631 F.3d at 1176 (“[W]ithout

22

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
hands in

the

RFC

finding.

However,

Dr.

Oguntuyo’s

opinions

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.
VI.

CONCLUSION

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.
23

An order will

DONE this 22nd day of November, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

24