Hearn v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION remanding for further proceedings. Signed by Judge Madeline Hughes Haikala on September 30, 2017. (Haikala, Madeline)

FILED
2017 Sep-30 PM 11:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

CHRISTOPHER HEARN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 4:15-CV-2001-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. § 1383(c), plaintiff Christopher Hearn seeks judicial
review of a final adverse decision of the Commissioner of Social Security. The
Commissioner denied Mr. Hearn’s claim for supplemental security income. For
the reasons stated below, the Court remands this matter for further proceedings.1
I.

PROCEDURAL HISTORY
Mr. Hearn filed his first application for supplemental security income on

December 1, 2008. (Doc. 7-3, p. 22). The Commissioner denied the application
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).

on February 25, 2009. (Doc. 7-3, p. 22). Mr. Hearn requested a hearing before an
administrative law judge, and the ALJ issued an unfavorable decision on January
24, 2011. (Doc. 7-3, p. 22). The Appeals Council declined Mr. Hearn’s request
for review on September 18, 2012. (Doc. 7-3, p. 22).
Mr. Hearn appealed the Commissioner’s decision to federal district court on
November 16, 2012. (Doc. 1 in Case 4:12-cv-03892-AKK). 2 The district court
affirmed the Commissioner’s decision on September 26, 2014. (Doc. 15 in Case
4:12-cv-03892-AKK; Doc. 16 in Case 4:12-cv-03892-AKK). On November 19,
2014, Mr. Hearn appealed the district court’s decision to the Eleventh Circuit
Court of Appeals. (Doc. 17 in Case 4:12-cv-03892-AKK). On July 31, 2015, the
Eleventh Circuit issued a decision affirming the Commissioner’s denial of Mr.
Hearn’s claim. See Hearn v. Comm’r of Soc. Sec. Admin., 619 Fed. Appx. 892
(11th Cir. 2015). In this opinion, the Court refers to proceedings associated with
Mr. Hearn’s December 1, 2008 application as Hearn I.

2

The record for Mr. Hearn’s first social security appeal is available on CM/ECF, the Court’s
electronic filing system. The Court takes judicial notice of that record. See Horne v. Potter, 392
Fed. Appx. 800, 802 (11th Cir. 2010) (district court properly took judicial notice of documents
related to the plaintiff’s previous civil action because the documents “were public records that
were ‘not subject to reasonable dispute’ because they were ‘capable of accurate and ready
determination by resort to sources whose accuracy could not reasonably be questioned.’”)
(quoting Fed. R. Evid. 201(b); other internal citations omitted). The Court cites to district court
entries from Mr. Hearn’s first social security appeal by document and case number.

2

Mr. Hearn protectively filed a second application for supplemental security
income on September 26, 2012. (Doc. 7-4, p. 13; Doc. 7-7, p. 2). 3 Mr. Hearn
completed his second application on October 1, 2012. (Doc. 7-6, pp. 2-7). The
Court will refer to proceedings associated with Mr. Hearn’s October 1, 2012
application as Hearn II. In Hearn II, Mr. Hearn alleges that his disability began on
September 26, 2012, eight days after the Appeals Council declined review in
Hearn I. (Doc. 7-6, p. 2; see Doc. 7-3, p. 22). The Commissioner initially denied
Mr. Hearn’s second application on November 30, 2012. (Doc. 7-5, p. 2). Mr.
Hearn requested a hearing before an ALJ. (Doc. 7-5, p. 9). The ALJ issued an
unfavorable decision on April 9, 2014. (Doc. 7-3, p. 19). On September 10, 2015,
the Appeals Council declined Mr. Hearn’s request for review (Doc. 7-3, p. 2),
making the Commissioner’s decision in Hearn II final and a proper candidate for
this Court’s judicial review. See 42 U.S.C. § 1383(c).
II.

STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the

ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close

3

If a claimant meets certain criteria, a claimant protectively files for benefits on the date that he
provides a written or oral statement to the Social Security Administration of his intent to file an
application for benefits. See https://secure.ssa.gov/poms.nsf/lnx/0200204010 (last visited
September 20, 2017).
3

scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.

“Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”

Costigan v.

Comm’r of Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
4

III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has established that he is disabled, the ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Mr. Hearn has not engaged in substantial
gainful activity since September 26, 2012, the alleged onset date. (Doc. 7-3, p.
24). The ALJ determined that Mr. Hearn suffers from the following medically
determinable impairments:

hypertension, hyperlipidemia, and coronary artery

disease. (Doc. 7-3, p. 24). Although Mr. Hearn claimed that he was disabled
because of bipolar disorder, seizures, and schizophrenia (Doc. 7-3, p. 25), the ALJ
found that there was no finding “from any acceptable source to support [Mr.
Hearn’s] allegations of bipolar disorder, seizures, or schizophrenia from September
26, 2012, through the date of this decision.” (Doc. 7-3, pp. 26-27). Therefore, the
ALJ concluded that those “alleged impairments are not medically determined
impairments.” (Doc. 7-3, p. 27).
5

Based on a review of the limited medical evidence post-dating September
26, 2012, the ALJ concluded that Mr. Hearn does not have a severe impairment or
combination of impairments. (Doc. 7-3, p. 24). Therefore, the ALJ found that Mr.
Hearn is not disabled within the meaning of the Social Security Act. (Doc. 7-3, pp.
27-28); see 20 C.F.R. § 404.1520(c) (“You must have a severe impairment. If you
do not have any impairment or combination of impairments which significantly
limits your physical or mental ability to do basic work activities, we will find that
you do not have a severe impairment and are therefore, not disabled. We will not
consider your age, education, and work experience.”).
IV.

ANALYSIS
Mr. Hearn contends that he is entitled to relief because the ALJ failed to

consider evidence in the administrative record that pre-dates the September 26,
2012 protective filing date. The Court agrees. 4
To prove that he was disabled because of bipolar disorder, seizures, and
schizophrenia, Mr. Hearn placed in the administrative record a June 11, 2012
psychological evaluation from Dr. David Wilson and a mental health source
statement that Dr. Wilson completed on June 19, 2012. (Doc. 9, pp. 23-25; Doc.
12, pp. 1-3). With regard to that evidence and all of the other medical evidence in
4

Mr. Hearn also asks the Court to remand the case so that the ALJ may reassess Mr. Hearn’s
subjective complaints of pain consistent with Social Security Ruling 16-3p. (Doc. 17). Because
the Court will remand this action so that the ALJ may consider all relevant evidence, the Court
does not address the merits of Mr. Hearn’s arguments concerning Social Security Ruling 16-3p.
6

the administrative record that pre-dated September 26, 2012, the ALJ stated that he
“only ha[d] the power to make a decision from the current filing date through the
date of this decision. Much of the evidence in the present claim relates to the
pending Federal District Court review and cannot be considered in this decision.”
(Doc. 7-3, p. 26).
This statement in the ALJ’s April 9, 2014 decision is consistent with
comments that the ALJ made during the administrative hearing.

During the

administrative hearing, the ALJ told Mr. Hearn’s attorney that he would “evaluate
[Hearn II] based on the evidence from the filing date [September 26, 2012]
forward, and that’s really all I have the power to do. The rest of th[e evidence] is .
. . in the court process, and it’s out of my jurisdiction and out of power to resolve.”
(Doc. 7-3, p. 39). The ALJ reiterated that he had “no power or jurisdiction to
cover that [pre-September 2012] period of time.” (Doc. 7-3, p. 39). The ALJ
stated that a July 13, 2011 psychological evaluation from consultative examiner
Dr. Jack Bentley “was considered in the pending court case.” (Doc. 7-3, pp. 3738). The ALJ also stated that certain medical records from Marshall Medical
Center South were “considered in the previous decision.” (Doc. 7-3, p. 38).
After the hearing, counsel for Mr. Hearn wrote the ALJ to object to the
ALJ’s statements concerning the records that the ALJ believed were part of the
record in Hearn I. Counsel explained that the Appeals Council did not accept the
7

records, and neither the ALJ nor the Appeals Council considered the records in
Hearn I. (Doc. 7-7, p. 67).
On the court transcript index for the records in Hearn II, a “prior folder” or
“prior file” notation accompanies Dr. Bentley’s report and some of the treatment
records from Marshall Medical Center South. (Doc. 7-2, pp. 1-2).
A comparison of the administrative record in this case and the administrative
record in Hearn I reveals that the ALJ was mistaken; the evidence that is part of
the administrative record in Hearn II was not part of the administrative record in
Hearn I. (Compare Doc. 7-2, pp. 1-2 in Case 4:15-cv-02001-MHH with Doc. 6-2,
pp. 1-3 in Case 4:12-cv-03892-AKK).

The Bentley report and the Marshall

Medical Center records do not appear in Hearn I. There are several medical
records in Hearn II that Mr. Hearn submitted to the Appeals Council in Hearn I.
Those records include:
• Treatment notes from visits with Dr. Fernandez on May 12, 2011 and
November 14, 2011 (compare Doc. 7-8, pp. 52-56 in Case 4:15-cv02001-MHH with Doc. 6-3, p. 3 in Case 4:12-cv-03892-AKK);
• Treatment notes from Marshall Medical Center South dated April 25,
2011 through April 27, 2011 and May 2, 2012 (compare Doc. 7-8, pp.
9-40 and Doc. 7-11, pp. 31-34 in Case 4:15-cv-02001-MHH with Doc.
6-3, p. 3 in Case 4:12-cv-03892-AKK);
• Treatment notes from an emergency room visit at Gadsden Regional
Medical Center on August 14, 2011 (compare Doc. 7-11, pp. 2-17 in
Case 4:15-cv-02001-MHH with Doc. 6-3, p. 3 in Case 4:12-cv-03892AKK);
8

• Dr. Wilson’s June 11, 2012 psychological evaluation (compare Doc.
7-11, pp. 18-24 in Case 4:15-cv-02001-MHH with Doc. 6-3, p. 3 in
Case 4:12-cv-03892-AKK); and
• Dr. Wilson’s June 19, 2012 mental health source statement (compare
Doc. 7-11, pp. 25-26 in Case 4:15-cv-02001-MHH with Doc. 6-3, p. 3
in Case 4:12-cv-03892-AKK).5

In Hearn I, the Appeals Council stated that it looked at these records, but it did not
make these records part of the administrative record in Hearn I. The Appeals
Council found that the ALJ’s decision in Hearn I was dated January 24, 2011, and
the records that Mr. Hearn offered to the Appeals Council were “about a later
time,” so that the records did not “affect the decision about whether [Mr. Hearn
was] disabled beginning on or before January 24, 2011.” (Doc. 6-3, p. 3 in Case
4:12-cv-03892-AKK).

The district court ultimately affirmed the Appeals

Council’s finding. See p. 2, above.
In its September 18, 2012 notice declining review in Hearn I, the Appeals
Council advised Mr. Hearn that if he wanted the Social Security Administration to
consider whether he was disabled beginning on or after January 24, 2011, then he
should file a new application. (Doc. 6-3, p. 3 in Case 4:12-cv-03892-AKK). The
Appeals Council instructed Mr. Hearn: “[i]f you file a new claim for supplemental
5

In Hearn I, Mr. Hearn also submitted to the Appeals Council treatment notes from Huntsville
Hospital dated January 11, 2012 and treatment notes from Marshall Medical Center South dated
March 22, 2011 and January 4, 2012. Unlike the other new evidence that Mr. Hearn submitted to
the Appeals Council in Hearn I, this medical evidence is not part of the administrative record in
Hearn II.
9

security income within 60 days after you receive this letter, we can use March 22,
2011, the date of your request for review, as the date of your new claim.” (Doc. 63, p. 3). Consistent with this instruction, Mr. Hearn protectively filed a new
application on September 26, 2012, eight days after the Appeals Council declined
review.
The Commissioner maintains that the “relevant time period is the month in
which [Mr. Hearn] filed his [supplemental security income] application
(September 2012) through the date of the ALJ’s decision.” (Doc. 10, p. 5) (citing
20 C.F.R. § 416.501 and Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005)). In her brief, the Commissioner does not mention the Appeals Council’s
indication in Hearn I that March 22, 2011 should serve as the date of Mr. Hearn’s
new claim for supplemental security income because Mr. Hearn filed a new
application for benefits within 60 days of the Appeals Council’s September 18,
2012 notice.6
Assuming without finding that the date of Mr. Hearn’s claim in Hearn II is
September 26, 2012, the ALJ erred in concluding that he could not consider a
medical opinion or medical records that predate an application date (or protective
filing date). The applicable regulations require an ALJ to “consider all evidence in

6

If March 22, 2011 should serve as the date of Mr. Hearn’s new claim for supplemental security
income, then none of the psychological evaluations in the administrative record predate the
application date.
10

[a claimant’s] case record when [he] make[s] a determination or decision whether
[a claimant] is disabled.” 20 C.F.R. § 416.920(a)(3); see also Henry v. Comm’r of
Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (the ALJ “must scrupulously and
conscientiously probe into, inquire of, and explore for all relevant facts” and
“consider the evidence as a whole.”).
Citing a decision from the Ninth Circuit Court of Appeals, the
Commissioner argues that the ALJ was not required to consider Dr. Wilson’s June
2012 reports because ‘“[m]edical opinions that predate the alleged onset of
disability are of limited relevance.’”

(Doc. 10, p. 10) (quoting Carmickle v.

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008)).7 Nevertheless,
opinion evidence that predates an alleged onset date may be relevant to a
determination of disability. See Douglas v. Comm’r of Soc. Sec., 486 Fed. Appx.
72, 75 (11th Cir. 2012) (explaining that an ALJ considered evidence from before
and after the alleged onset date “that would have bearing on [the claimant’s]
disability during the relevant time” in reaching his decision that the claimant was
not disabled”).
In addition, even if medical records or opinions in the administrative record
in Hearn II also were part of the administrative record in Hearn I (they were not),
7

In Carmickle, the Ninth Circuit found that an ALJ did not err in giving little weight to an
examining physician’s opinion because it pre-dated the alleged onset date and was based on an
examination during a time when the claimant was working two jobs and had not yet experienced
an allegedly disabling injury. Carmickle, 533 F.3d at 1165.
11

that would not preclude the ALJ from considering those documents in Hearn II.
When evaluating a pending claim for benefits, an ALJ may consider evidence that
was part of the administrative record for a prior application without reopening the
prior decision and running afoul of the concept of administrative res judicata.
Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996). “Administrative res judicata
applies when the agency has made a ‘previous determination or decision . . . about
[a claimant’s] rights on the same facts and the same issue or issues, and this
previous determination or decision [had] become final by either administrative or
judicial action.’” McKinzie v. Comm’r of Soc. Sec., 362 Fed. Appx. 71, 73 (11th
Cir. 2010) (quoting 20 C.F.R. § 404.957(c)(1)).

An ALJ may use evidence

contained in a prior administrative record to identify “preliminary facts required to
assess rationally the question at issue, i.e., whether [the claimant] was disabled at
the time of the second application.” Rohrich v. Bowen, 796 F.2d 1030, 1031 (8th
Cir. 1986) (stating that ALJ properly summarized medical examinations from
1978, 1979, and 1980 relating to prior application for benefits for purposes of
evaluating 1982 application for benefits) (cited with approval in Wolfe). 8 An ALJ

8

See also Hamlin v. Barnhart, 365 F.3d 1208, 1223 n. 15 (10th Cir. 2004) (“While these medical
reports date from an earlier adjudicated period, they are nonetheless part of Mr. Hamlin’s case
record, and should have been considered by the ALJ.”); DeBoard v. Comm’r of Soc. Sec., 211
Fed. Appx. 411, 414 (6th Cir. 2006) (“We do not endorse the position that all evidence or
medical records predating the alleged date of the onset of disability, or evidence submitted in
support of an earlier proceeding, are necessarily irrelevant or automatically barred from
consideration by res judicata. We recognize that evidence presented at an earlier hearing or
predating the onset of disability, when evaluated in combination with later evidence, may help
12

crosses the line and reopens a prior administrative decision when the ALJ
evaluates the merits of the prior disability determination. Wolfe, 86 F.3d at 1079. 9
Because none of the psychological records that were part of the
administrative record in Hearn II were part of the administrative record in Hearn I,
the ALJ, at a minimum, should have examined Dr. Wilson’s June 11, 2012 report
and assigned a weight to that report. Dr. Wilson diagnosed Mr. Hearn with mood
disorder, borderline intelligence, personality disorder, seizure disorder with side
effects from medication, and cardiac problems. (Doc. 7-11, p. 24). Dr. Wilson
noted that Mr. Hearn had inadequate access to necessary medical or psychiatric
care. (Doc. 7-11, p. 24). On June 19, 2012, Dr. Wilson also completed a mental
health source statement on behalf of Mr. Hearn. (Doc. 7-11, pp. 25-26). 10

establish disability.”) (emphasis in DeBoard). An ALJ also may examine evidence from a prior
administrative record to determine the res judicata effect of the evidence with respect to the
latter, pending application. Wolfe, 86 F.3d at 1078-79. Here, the ALJ would not be able to
evaluate conclusively the res judicata effect of evidence that appeared in both administrative
records until the Eleventh Circuit affirmed the Appeals Council’s decision in Hearn I to
disregard the additional records that Mr. Hearn presented to the Appeals Council in Hearn I.
9

Dictum from an unpublished Eleventh Circuit opinion indicates that an ALJ is not required to
consider evidence that was part of the administrative record for a previous disability application.
Luckey v. Astrue, 331 Fed. Appx. 634, 640 n. 1 (11th Cir. 2007) (“We recognize the force of the
argument that the ALJ was not required to consider [Dr.] Oatley’s diagnoses because they
pertained only to Luckey’s previous disability application.”).
10

Dr. Wilson opined that Mr. Hearn has a mild degree of limitation in the ability to remember
locations and work-like procedures; the ability to understand and remember very short and
simple instructions; the ability to carry out very short and simple instructions; the ability to make
simple work-related decisions; and the ability to ask simple questions or request assistance.
(Doc. 7-11, p. 25). Dr. Wilson found that Mr. Hearn has a moderate degree of limitation in the
ability to travel in unfamiliar places or use public transportation. (Doc. 7-11, p. 26). Dr. Wilson
also opined that Mr. Hearn has a marked degree of limitation in the ability to understand and
13

Dr. Wilson’s opinion is inconsistent with the November 29, 2012 opinion of
state agency psychological consultant, Dr. Robert Estock – an opinion to which the
ALJ assigned great weight. Dr. Estock reviewed treatment records from Mr.
Hearn’s visits with his treating cardiologist. Those treatment records are dated
April 2, 2012; October 30, 2012; and November 5, 2012. Dr. Estock noted that he
did not receive psychological records that contained diagnoses of schizophrenia or
bi-polar disorder, but he stated that even if Mr. Hearn had these diagnoses, Mr.
Hearn’s generalized anxiety disorder was not severe based on exams by Mr.
Hearn’s cardiologist where Mr. Hearn had full orientation, normal mood and
effect, and no depression, anxiety, or agitation. (Doc. 7-4, p. 6). Dr. Estock
concluded that Mr. Hearn’s anxiety caused mild restrictions in activities of daily
living and no restrictions in social functioning or maintaining concentration,
persistence, or pace. (Doc. 7-4, p. 7). The ALJ gave “great weight” to Dr.
Estock’s opinion in part because the opinion was based on examinations that

remember detailed instructions; the ability to carry out detailed instructions; the ability to
maintain attention and concentration for extended periods; the ability to perform activities within
a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability
to sustain an ordinary routine without special supervision; the ability to work in coordination or
proximity to others without being distracted by them; the ability to complete a normal workday
and workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; the ability to respond
appropriately to changes in the work setting; the ability to be aware of normal hazards and take
appropriate precautions; and the ability to set realistic goals or make plans independently of
others. (Doc. 7-11, pp. 25-26).
14

“showed that [Mr. Hearn] did not exhibit any symptoms of a severe mental
impairment.” (Doc. 7-3, p. 27).
Mr. Hearn argues that the ALJ improperly relied on Dr. Estock’s opinion
because “‘[t]he opinions of non-examining, reviewing physicians, . . . when
contrary to those of examining physicians are entitled to little weight in a disability
case, and standing alone do not constitute substantial evidence.” (Doc. 9, p. 12)
(quoting Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988)).

Under the

circumstances of this case, the Court cannot determine whether substantial
evidence supports the ALJ’s decision to give great weight to Dr. Estock’s opinion
because the ALJ did not examine other relevant evidence concerning Mr. Hearn’s
mental status. See Himes v. Comm’r of Soc. Sec., 585 Fed. Appx. 758, 766 (11th
Cir. 2014) (“[T]he ALJ’s error in only assigning weight to Dr. Levassur’s opinion
is compounded because he was a nonexamining physician, as opposed to Dr.
Brown and Dr. DiGeronimo, who were examining physician.”).
Moreover, because Dr. Wilson’s opinion does not support the ALJ’s
conclusion, the Court cannot conclude the ALJ’s failure to evaluate Dr. Wilson’s
opinion is harmless error. The ALJ must weigh the evidence. Nyberg v. Comm’r
of Soc. Sec., 179 Fed. Appx. 589, 592 (11th Cir. 2006); compare Wright v.
Barnhart, 153 Fed. Appx. 678, 684 (11th Cir. 2005) (“Although the ALJ did not
explicitly state what weight he afforded the opinions of [various physicians], none
15

of their opinions directly contradicted the ALJ’s findings, and, therefore, any error
regarding their opinions is harmless.”).
V.

CONCLUSION
For the reasons discussed above, the Court remands this case to the

Commissioner for an evaluation of Mr. Hearn’s application for benefits in light of
the entire administrative record in Hearn II. The Court asks the ALJ to please
consider the application date in light of the Appeals Council’s instructions to Mr.
Hearn in Hearn I. The Court will enter a separate final judgment consistent with
this memorandum opinion.

DONE and ORDERED this September 30, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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