Flannery v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION, as set out. Signed by Magistrate Judge John H England, III on 1/14/15. (CTS, )

FILED
2015 Jan-14 AM 10:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TRACIE FLANNERY,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

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Case Number: 4:13-cv-02091-JHE

Defendant.
MEMORANDUM OPINION 1
Plaintiff Tracie Flannery (“Flannery”) seeks review, pursuant to 42 U.S.C. § 405(g), §
205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her application for a period of disability, disability
insurance benefits (“DIB”), and Supplemental Security Income (“SSI”).

Flannery timely

pursued and exhausted her administrative remedies. The case is therefore ripe for review under
42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully considered the record and, for
the reasons stated below, the Commissioner’s decision is due to be REVERSED and
REMANDED for further proceedings.
I. Factual and Procedural History
Flannery was a forty-nine year old female at the time of the Administrative Law Judge
(“ALJ”) decision. (Tr. 29, 222). Flannery has limited education and previously worked as a
cashier. (Tr. 28).
1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 15).
1

Flannery filed her application for a period of disability, DIB, and SSI on July 17, 2006,
alleging an initial onset date of December 31, 2002. (Tr. 217-26). The Commissioner initially
denied Flannery’s application, and Flannery requested a hearing before an ALJ. (Tr. 105). On
August 18, 2009, the ALJ found she was not disabled. (Tr. 102-16). Flannery filed subsequent
claims for SSI and DIB on August 18, 2009 and September 1, 2009, respectively, and, on
October 15, 2009, the state agency found Flannery disabled beginning August 14, 2009. (Tr.
119). Noting the discrepancy between these two decisions, the Appeals Council consolidated the
cases and remanded them to an ALJ to consider additional evidence and to issue another
decision. (Tr. 117-21). After the hearing, the ALJ denied Flannery’s claim on June 11, 2012.
(Tr. 29). Flannery sought review by the Appeals Council, but, despite accepting her new
evidence into the record, it declined her request for review on September 19, 2013. (Tr. 1-3). On
that date, the ALJ’s decision became the final decision of the Commissioner. On November 15,
2013, Flannery initiated this action. (See doc. 1).
II. Standard of Review 2
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, 91 S. Ct. 1420, 1422 (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

2

In general, the legal standards applied are the same 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 for statutes or regulations found in
quoted court decisions.
2

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 supported by substantial evidence. However, it
reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches to the
ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528,
531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the law, or if the ALJ
fails to provide the court with sufficient reasoning for determining the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
III. 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 entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
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, 2013.
3

disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine, in sequence:
(1)
(2)
(3)
(4)
(5)

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

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has
satisfied steps One and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.”
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show such work exists in the national economy in significant
numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Flannery met the insured status requirements of the Social
Security Act through March 31, 2011, (tr. 16), and that Flannery had not engaged in substantial
gainful activity since December 31, 2002, the alleged onset date of her disability, (tr. 17). At
Step Two, the ALJ found Flannery has the following severe impairments: depression, anxiety,
substance abuse, obesity, diabetes mellitis, degenerative disk disease, hepatitis C with failed
therapy, carpal tunnel syndrome, and migraine headaches. (Id.). At Step Three, the ALJ found

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Flannery does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19).
Before proceeding to Step Four, the ALJ determined Flannery’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined Flannery has the RFC “to perform light work as defined in
20 C.F.R. 404.1567(b) and 416.967(b), except she can comprehend and recall brief and
uncomplicated directions, carry out short, simple instructions, attention and concentration is
adequate for two hours [sic] periods throughout an eight-hour day.” (Tr. 22). Furthermore, the
ALJ found Flannery has “appropriate social interaction for causal [sic] and moderately limited
contact with the public and co-workers,” “can lift and carry 20 pounds occasionally and ten
pounds frequently,” “can stand or walk four hours total in an eight-hour day but no more than
one hour at a time” “can sit four hours total in an eight-hour day but no more than one hour at a
time,” “can occasionally reach, push or pull, climb, balance, stoop, kneel, crouch or crawl,” “can
perform at unprotected heights or around moving machinery,” and “can occasionally perform
around environments of duct, gases, fumes and other pulmonary irritants and in environments of
temperature extremes and vibrations.” (Id.).
At Step Four, the ALJ determined Flannery is able to perform her past relevant work. (Tr.
28). At Step Five, the ALJ determined, based on Flannery’s age, education, work experience,
and residual functional capacity, there are also other jobs that exist in significant numbers in the
national economy Flannery could perform. (Tr. 29). Therefore, the ALJ determined Flannery
has not been under a disability and denied Flannery’s claim. (Id.).
V. Analysis
Although the Court may only reverse a finding of the Commissioner if it is not supported

5

by substantial evidence or because improper legal standards were applied, “[t]his 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)).
The Court, however, “abstains from reweighing the evidence or substituting its own judgment
for that of the [Commissioner].” Id. (citation omitted).
Flannery contends the ALJ erred by improperly applying the Eleventh Circuit pain
standard, (doc. 13 at 3-7); improperly giving the consultative opinions of Dr. Storjohann and
Estock “little weight” without substantial supporting evidence, (id. at 7-9); and failing to
properly articulate good cause for according less weight to the opinion of Flannery’s treating
physician, (id. at 9-11).
A. The ALJ’s Adverse Credibility Finding Regarding Flannery’s Subjective Pain
Testimony is Supported by Explicit and Adequate Reasons, as well as Substantial
Evidence
The Eleventh Circuit “has established a three part ‘pain standard’ that applies when a
claimant attempts to establish disability through his or her own testimony of pain or other
subjective symptoms. The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the severity of the alleged pain
arising from that condition or (3) that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the alleged pain.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991).

Subjective testimony supported by medical evidence

satisfying the standard is sufficient to support a finding of disability. Id. “If the ALJ decides not
to credit such testimony, he must articulate explicit and adequate reasons for doing so.” Id.
Failure to articulate such reasons requires the testimony be accepted as true as a matter of law.

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Id.
The ALJ found Flannery’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms, satisfying the pain standard and establishing her
testimony as sufficient to support a finding of disability. (Tr. 23). However, the ALJ may still
make a credibility determination on the claimant’s statements about the intensity and effect of
that pain. See Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Hogard v. Sullivan, 733
F.Supp. 1465, 1469 (M.D. Fla. 1990). The ALJ’s adverse credibility determination must be
supported by “explicit and adequate reasons,” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991), and substantial evidence, see Foote, 67 F.3d at 1561-62. The ALJ discussed Flannery’s
medical history in detail, (tr. 22-27), and determined “the substantial evidence does not confirm
disabling pain or other limitations arising from [Flannery]’s alleged impairments,” (tr. 27).
Flannery begins her argument by focusing on a single statement in the ALJ’s decision,
which states Flannery’s “complaints are not corroborated by diagnostic imaging that consistently
showed no greater than mild degenerative changes . . . but no evidence of acute fractures,
misalignment, subluxation, or nerve root involvement.” (Doc. 13 at 4) (citing tr. at 23). Despite
having already acknowledged the ALJ’s finding that her “medically determinable impairments
could reasonably be expected to cause the alleged symptoms,” (id. at 4) (quoting tr. 23),
Flannery goes on to describe all of the evidence that “could reasonably give rise to [Flannery]’s
allegations of her disabling pain and limitations” and asserts that the ALJ’s conclusion to the
contrary was reversible error, (id. at 5). The ALJ’s citations to the diagnostic tests that he states
do not corroborate her pain level are part of an extensive discussion of the medical evidence,
showing mild effects from her conditions and conservative treatment from her doctors, which the
ALJ found contradicted her allegations of extreme pain. (Tr. 23-24). The ALJ articulates more

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than sufficient reason to discredit Flannery’s subjective complaints of pain.
Her next argument is that, “[a]lthough the ALJ acknowledged the Plaintiff’s ongoing
treatment for complaints of back pain, he failed to properly consider the longitudinal treatment
record which supports the Plaintiff’s testimony.” (Doc. 13 at 5). She points to repeated trips to
physicians at which she reported pain levels of 6 to 8 on a 10 point scale and for which she was
prescribed various painkillers and anxiety medication. (Id. at 6-7) (citing tr. 604-09, 611, 61416, 619-25, 648-49, 651, and 653). Flannery concedes the ALJ acknowledged her ongoing
treatment, (id. at 5), but, citing to evidence Flannery ignores, the ALJ also found a history of
successful conservative management accompanied by normal gait and decreased range of motion
only in the spine, limiting her “to work activity consistent with the light level of exertion.” (Tr.
23-24).
Flannery also contends the ALJ mischaracterized the evidence when he found Flannery
“has required only conservative management and has not been of such severity as to warrant
referrals to specialists for further treatment.” (Doc. 13 at 7) (citing tr. 24). Flannery points to a
note in her treating physician’s records indicating she “should probably see a surgeon.” (Id.)
(citing tr. at 355). The problem with using this to undermine the ALJ’s decision is the ALJ cited
to the report of the surgeon to which Flannery’s doctor referred her. (Tr. at 23) (citing tr. 63132). The surgeon’s report noted Flannery reported only intermittent pain and her physical
examination was essentially within normal limits, finding she had a normal gait and station, full
motor strength of all muscle groups, and no evidence of neurological deficit. (Tr. 631-32).
Moreover, the referral surgeon’s plan explicitly recommended “conservative treatments,” such as
physical therapy and medication. (Tr. 632).
In addition, the ALJ cited to Flannery’s daily activities as evidence contrary to her

8

allegations of disabling pain, noting Flannery “reported that she cooked meals, shopped,
performed household chores and personal care except for her hair, watched television, listened to
music, read and talked on the telephone daily, drove short distances, visited with family and
friends weekly, played cards and Scrabble with others on a regular basis, handled finances and
provided care for multiple dogs on a daily basis.” (Tr. 22) (citing tr. 304-16).
The record contains such relevant evidence as a reasonable person would accept as
adequate to support the ALJ’s conclusion Flannery’s testimony of severe, debilitating pain was
not credible in light of the medical evidence. As this constitutes substantial evidence and is
based on application of the proper legal standards, the undersigned may not override that
conclusion.
B. The ALJ Did Not Err in Giving Less Weight to the Consultative Examination
Reports of Drs. Storjohann and Estock
Flannery first states Dr. Robert Storjohann, a licensed psychologist, performed a
consultative exam on April 8, 2009, and his report showed “symptoms including a severely
depressed mood, sleep disturbance, increased appetite, social withdrawal, isolation, irritability,
low frustration tolerance, low energy, chronic fatigue and loss of interest.” (Doc. 13 at 7) (citing
Tr. 769). She further noted he found “marked to extreme limitations in areas that would preclude
work.”

(Id. at 8) (citing tr. 772-774).

She then notes Dr. Robert Estock’s consultative

examination, opining Flannery met listing 12.06 for Anxiety-Related Disorders, was consistent
with Dr. Storjohann’s report. (Id.) (citing tr. 974, 984). Flannery further points to various
physician’s notes from the record regarding anxiety, fatigue, and pain to support the doctors’
findings. (Id.).
The Commissioner responded, asserting the ALJ properly granted reduced weight to the
two consultative exam reports. (Doc. 14 at 19-21). First, the Commissioner explains the ALJ
9

properly gave Dr. Storjohann’s opinion little weight because it was inconsistent with his own
notes and the record generally. (Doc. 14 at 19-20) (citing tr. 770-71). Next, the Commissioner
points out Dr. Estock’s report was given little weight because it appears not only to be based
solely on Dr. Storjohann’s opinion and not consider the opinions of any of the other physicians
but it also directly conflicts with Dr. Mary Arnold’s subsequent opinion finding only moderate
limitations in any area. (Id. at 20-21) (citing tr. 974-86).
Under 20 C.F.R. § 404.1527(c)(2), a treating physician’s opinion is given controlling
weight where it is “supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record.”
Accordingly, “[t]he 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.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). However, there is no such requirement for nontreating physicians.
See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (“[T]heir opinions are not entitled to
deference because as one-time examiners they were not treating physicians.”); Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (“[T]his requirement [to state good cause for giving
less weight] only applies to treating sources. With regard to nontreating, but examining, sources,
the agency will simply ‘[g]enerally [ ] give more weight to the opinion of a source who has
examined [the claimant] than to the opinion of a source who has not examined’ him.” (quoting
20 C.F.R. § 404.1527(d)(1)). Cf. 20 C.F.R. § 404.1527(c)(2) (“We will always give good
reasons in our notice of determination or decision for the weight we give your treating source’s
opinion.” (emphasis added)). Flannery does not contend Dr. Storjohann or Dr. Estock are
treating physicians; therefore, they receive no special deference. Similarly, an opinion from a
physician of any type on an issue reserved to the Commissioner is not considered a “medical

10

opinion” at all and does not receive any special significance. 20 C.F.R. § 404.1527(d).
Dr. Storjohann’s consultative report was not improperly discounted as that determination
was based on substantial evidence and the proper application of the legal principles. As a nontreating physician, his opinion was entitled to no special weight or explanation requirement, but
the ALJ addressed his findings and found his opinion worthy of less weight because his opinion
was not consistent with the record as a whole or even his own examination. (Tr. 26). The ALJ
noted that, although Dr. Storjohann assessed Flannery as having marked to severe mental
functional limitations, his own examination notes revealed intact memory; no hallucinations or
delusions; and logical, coherent, goal-directed thoughts and speech with no evidence of
confusion, loose associations, or psychosis. (Tr. 26) (citing tr. 767-774). The ALJ’s decision to
give less weight to Dr. Storjohann’s opinion is supported by substantial evidence and was not
improper.
As with Dr. Storjohann’s above, Dr. Estock’s consultative report was not improperly
discounted as that determination was based on substantial evidence and the proper application of
the legal principles. Like Dr. Storjohann, Dr. Estock’s opinion as a non-treating physician was
entitled to no special weight or explanation requirement. In addition, there is evidence from
other consultative medical sources entitled to the same deference as Drs. Storjohann and
Estock’s opinions to which the ALJ explicitly gave greater weight and which support the ALJ’s
RFC. (See tr. 27, 687-90 (Dr. Arnold’s October 2006 report); 1019-25 (Dr. Arnold’s August
2011 report); 1027-38 (Dr. Iyer’s report)). The ALJ’s decision to give less weight to Dr.
Storjohann and Estock’s opinions is supported by substantial evidence and was not improper.

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C. The ALJ Did Not Improperly Fail to Weigh Treating Physician Testimony That
Was Not In Evidence, but the Appeals Council Erred When It Denied Review
Despite That Newly Submitted Evidence
Flannery contends the ALJ’s decision is not supported by substantial evidence because
the ALJ did not articulate good cause for according less weight to the opinion of Flannery’s
treating physician, Dr. Michael Belyeu. (Doc. 13 at 9). Under 20 C.F.R. § 404.1527(c)(2), a
treating physician’s opinion is given controlling weight where it is “supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” Accordingly, “[t]he 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.” Lewis, 125 F.3d at 1440. Good cause to reduce the weight given to a treating
physician’s opinion exists “when the: (1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Phillips v. Barnhart, 357
F.3d 1232, 1241 (11th Cir. 2004).
The Commissioner contends, and Flannery concedes, the opinion at issue was never
admitted into evidence before the ALJ as it was not submitted until June 11, 2012, the same day
the ALJ’s decision was issued. (Doc. 13 at 9, doc. 14 at 21; tr. 1039-40; tr. 14-29). The Appeals
Council, however, admitted the letter into evidence as Exhibit 53. (Tr. 2, 5, 1039-40). This
makes it part of the record on appeal, but, “when the AC has denied review, [the court] will look
only to the evidence actually presented to the ALJ in determining whether the ALJ’s decision is
supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1322-23 (11th Cir. 1998).
As Dr. Belyeu’s letter was only presented to the Appeals Council, the ALJ “cannot be faulted for
having failed to weigh evidence never presented to him.” Falge, 150 F.3d at 1323 (quoting Eads

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v. Secretary of Dep’t of Health and Human Servs., 983 F.2d 815, 817 (7th Cir. 1993)).
Citing Falge and Keeton v. Dep’t of Health and Human Servs., 21 F.3d 1064 (11th Cir.
1994), the Commissioner argues Dr. Belyeu’s letter must be treated as new evidence before the
district court and can only be remanded under Sentence Six of 42 U.S.C. § 405(g), (doc. 14 at
22); however, subsequent Eleventh Circuit authority has clarified those two cases, see Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1264-66 (11th Cir. 2007). In Ingram, the Eleventh
Circuit noted the Appeals Council’s decisions to refuse evidence or consider evidence then deny
review are final decisions of the Commissioner subject to judicial review. Id. at 1265-66. The
court stated, “[b]ased on the plain meaning of the text of section 405(g) and the lucid explication
in our longstanding precedents about the scope of judicial review, we conclude that a federal
district court must consider evidence not submitted to the administrative law judge but
considered by the Appeals Council when that court reviews the Commissioner’s final decision
denying Social Security benefits.” Id. at 1258. See also Dunn v. Astrue, 660 F. Supp. 2d 1290,
1294 (N.D. Ala. 2009) (reversing Appeals Council’s decision not to review or remand on the
new evidence submitted). 4 As a result, district courts review the Appeals Council’s decision
under Sentence Four of 42 U.S.C. § 405(g) and determine whether, in light of the new evidence,
the ALJ’s decision remains supported by substantial evidence or the Appeals Council should
have remanded it. See Ingram, 496 F.3d at 1266.
Dr. Michael Belyeu’s letter constitutes opinion evidence from a treating physician, which
is given controlling weight when it is “supported by medically acceptable clinical and laboratory

4

Although the Eleventh Circuit observed that, where the party appealed only the ALJ’s
decision and not the Appeals Council’s decision, the latter issue would not be before it, id.
(citing Falge, 150 F.3d at 1324), it also held it was reversible error for the district court not to
consider whether the Appeals Council correctly decided the ALJ’s findings or conclusions are
not contrary to the weight of the evidence currently in the record, id. at 1266-67.
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diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record,” 20 C.F.R. § 404.1527(c)(2). In the letter, Dr. Belyeu lists Flannery’s conditions and the
various medications she takes for them, then states that, “[d]ue to the multiplicity of her
symptoms it is likely that she will at times miss more than 3 days from work per month and I do
not foresee this condition changing over the next 12 months or even longer.” (Tr. 1040). He
concludes she is “unable to work or maintain gainful employment at this time.” (Id.).
Although the letter’s ultimate conclusion is an issue for the Commissioner and therefore
not controlling, Dr. Belyeu’s opinion regarding the numbers of days Flannery would miss per
month is not a conclusory statement about her potential disability but a valid medical opinion
regarding the nature and severity of her conditions. See Titles II & XVI: Med. Source Opinions
on Issues Reserved to the Comm’r, SSR 96-5P, 1996 WL 374183, at *2 (S.S.A. July 2, 1996). 5
The Vocational Expert testified that, if “three or more [missed work days per month] would be
chronic or consistent[,] that would be preclusive of work activity.” (Tr. 59). Therefore, if Dr.
Belyeu’s opinion is supported by the evidence and given controlling weight, the Vocational
Expert’s opinion indicates Flannery would be unable to perform any of the jobs available to her.
Because a treating physician’s opinion is given controlling weight unless the ALJ “clearly
articulate[s] the reasons for giving less weight to [that] opinion,” Lewis, 125 F.3d at 1440, this
case should be remanded to the Commissioner to consider the additional evidence in the context
of the entire record, determine what weight it should be given, and articulate the reasons for that
5

The Commissioner contends Dr. Belyeu’s opinion regarding the number of days
Flannery would miss per month “is nothing more than an opinion on an issue reserved to the
Commissioner, which is entitled to no special significance,” (doc. 14 at 24), but does not explain
how Dr. Belyeu’s opinion falls into that class of dispositive administrative findings reserved to
the Commissioner. Dr. Belyeu’s opinion on this matter does not state a conclusion that the facts
are sufficient to meet a statutory or regulatory standard but merely states another opinion on a
fact that, in conjunction with the additional opinion of the Vocational Expert, bears on the
Commissioner’s administrative finding of disability.
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decision.
VI. Conclusion
Because new evidence brings into question whether the ALJ’s decision is still supported
by substantial evidence, the Commissioner’s decision is REVERSED and this action
REMANDED for further proceedings.
DONE this 14th day of January 2015.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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