Cannon v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/25/2012. (KAM, )
2012 Jul-25 PM 04:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARY A. CANNON,
MICHAEL J. ASTRUE,
) Case No.: 5:11-CV-2022-VEH
Mary Cannon (“Ms. Cannon”) brings this action pursuant to 42 U.S.C. §
405(g), § 205(g) of the Social Security Act. She seeks review of the decision of the
Commissioner of the Social Security Administration (the “Commissioner”)
denying her application for supplemental security income (“SSI”).1 Ms. Cannon
timely pursued and exhausted her administrative remedies available before the
Commissioner. The case is ripe for review under 42 U.S.C. § 405(g),2 § 205(g) of
In general, the legal standards applied are the same regardless of whether a claimant seeks
Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI). However, separate,
parallel statutes and regulations exist for DIB and SSI claims. Therefore, citations in this opinion
should be considered to refer to the appropriate parallel provision as context dictates. The same
applies to citations of statutes or regulations found in quoted court decisions.
42 U.S.C. § 1383(c)(3) renders the judicial review provision of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
the Social Security Act.
FACTUAL AND PROCEDURAL HISTORY
Ms. Cannon was 50 years old at the time of her hearing before the
administrative law judge (“ALJ”). (Tr. 82). She completed the tenth grade (Tr.
163), and later received her GED. (Tr. 98). Her past work experiences include
employment as a fast-food chain store manager, commercial cleaner, and box
packager. (Tr. 19, 41). Ms. Cannon claims she became disabled on February 28,
2001, due to leg swelling and aching, arthritis in her hands and feet, knots atop her
feet, sleeplessness, swelling in her hands and arms, and a history of carpel tunnel
syndrome and surgery in her left hand resulting in loss of strength.
Ms. Cannon filed her application for SSI benefits on March 22, 2007. (Tr.
120). It was denied on July 27, 2007. (Tr. 121). The Social Security Administration
received Ms. Cannon's request for a hearing on September 26, 2007 (Tr. 126), and
that hearing was held on April 22, 2009. (Tr. 128). Following that hearing, the ALJ
concluded that Ms. Cannon was not disabled and denied her application on June 8,
2009. (Tr. 21). After having her request for review denied by the Appeals Council
(Tr. 1), Ms. Cannon filed this action seeking review of the ALJ's decision. (Doc.
1). This court has carefully considered the record and, for the reasons stated below,
reverses the Commissioner’s denial of benefits, and remands the case for further
development and consideration.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of this court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson
v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must “scrutinize the
record as a whole to determine if the decision reached is reasonable and supported
by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). This court will determine that the ALJ’s opinion is supported by substantial
evidence if it finds “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. Substantial evidence is “more than a
scintilla, but less than a preponderance.” Id. Factual findings that are supported by
substantial evidence must be upheld by the court. The ALJ’s legal conclusions,
however, are reviewed de novo, because no presumption of validity attaches to the
ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala,
985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s
application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, the
ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F. 2d 1143, 1145-46
(11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and
the Regulations promulgated thereunder.3 The Regulations define “disabled” as
the “inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an
entitlement to disability benefits, a claimant must provide evidence about a
“physical or mental impairment” 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 disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must
determine in sequence:
whether the claimant is currently employed;
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts 400 to
499, as current through July 5, 2012.
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (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 Secretary
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 that such work exists in the national economy in significant
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found that Ms. Cannon had not engaged in substantial gainful
activity since her application date of March 22, 2007. (Tr. 14). The ALJ then
determined Ms. Cannon was suffering from several severe impairments, and
specifically listed hypertension, obesity, history of carpel tunnel syndrome, a
history of fracture of the 5th right metatarsal (i.e., a foot fracture), and depression
disorder. (Id.) The ALJ also noted that Ms. Cannon had recently been diagnosed
with diabetes mellitus, but found that condition to be non-severe. (Id.).
The ALJ determined that these impairments, when considered individually
or in combination, did not meet or equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Id.) Ms. Cannon does not contest this particular
finding on appeal.
Next, the ALJ considered Ms. Cannon’s residual functional capacity
(“RFC”), and found that:
[T]he claimant has the [RFC] to perform light work (defined as
requiring lifting/carrying up to 20 pounds occasionally and up to 10
pounds frequently, or either involving a good deal of
standing/walking or pushing/pulling of arm or leg controls) as
defined in 20 C.F.R. 416.967(b) except that: she cannot climb
ladders/ropes/scaffolding; she needs to avoid concentrated exposure to
extremes of cold/heat; she cannot no [sic] work at unprotected heights
or around dangerous/moving/unguarded machinery; psychological
factors restrict her to unskilled work (that is simple, routine, repetitive
work with no more than 1-2 step instructions or tasks); she is also
limited to occasional contact with supervisors, coworkers and the
In support of his RFC determination, the ALJ gave little weight to the
physical capacities evaluation of Ms. Cannon (Tr. 362) performed by her treating
physician, Dr. Stephen A. Branning (“Dr. Branning”). (Tr. 18)(“The undersigned
gives little weight to most of Dr. Branning’s April 14, 2009 assessment forms.”).
Based upon his medical assessment, Dr. Branning determined that Ms. Cannon
“could not lift and/or carry more than 10 pounds occasionally, could not do any
sitting, standing or walking in an 8-hour day, and could never do any
pushing/pulling, climbing, balancing, or gross or fine manipulation.” Additionally,
Dr. Branning’s physical capacity evaluation indicated “that [Ms. Cannon] could
only occasionally bend, stoop, and reach, and could not work around hazardous
machinery or dust/allergens/fumes, etc.” (Tr. 362).
As an additional factor in making his RFC determination, the ALJ stated that
he gave “more weight to the state agency medical consultant opinion in July 2007
that the claimant could perform a wide range of medium work (Exhibit B8F) [i.e.,
Tr. 245] than to Dr. Branning’s April 2009 assessments.” (Tr. 18). The ALJ did,
however, note that the state agency medical consultant had never examined or
treated Ms. Cannon, but, nevertheless, concluded that the consultant’s assessment
was “more consistent with the record as a whole.” (Id.).
Regarding Ms. Cannon’s mental functioning, the ALJ gave little weight to
the results of the consultative psychological examination performed by John R.
Haney, Ph.D. (“Dr. Haney”). Rather, the ALJ gave great weight to the consultative
medical examination conducted by Will R. Crouch, M.D. (“Dr. Crouch”) and the
opinion of the non-examining state agency medical consultant. (Tr. 19).
Against this backdrop, the ALJ concluded that Ms. Cannon could not
perform her past relevant work, which was more strenuous than her residual
functional capacity permitted. (Tr. 19). Because of this, the ALJ then had to
proceed to the fifth prong of the sequential analysis, and determine whether the
claimant was capable of performing any jobs in the national economy.
In the final step, the ALJ considered Ms. Cannon’s residual functional
capacity, age, education, and work experience, and determined that there are a
significant number of jobs in the national economy that Ms. Cannon is capable of
performing. (Tr. 20). Relying on the expertise of a vocational expert, the ALJ
provided examples of such jobs, including packing line worker, nut and bolt
assembler, and garment sorter. (Tr. 20). Accordingly, the ALJ concluded Ms.
Cannon was not disabled as defined by the Social Security Act, and denied her SSI
claim. (Tr. 21).
The court must review the Commissioner's findings of fact with deference,
but may reverse when those findings are not supported by substantial evidence. See
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen,
790 F.2d 1572, 1574-75 (11th Cir. 1986)). In making that determination, the court
“must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir.1983)). Ms. Cannon argues that the ALJ’s findings
were not supported by substantial evidence because the ALJ “substitut[ed] his own
judgment for that of the her treating physician Dr. Stephen A. Branning and the
ALJ’s own disability determination service consultative psychologist, Dr. John R.
Haney.” (Doc. 8 at 10). Upon review, the court finds that the ALJ’s disability
decision is not supported by substantial evidence, and remands the case for further
development and consideration.
THE ALJ’S DISABILITY DETERMINATION IS DEFICIENTLY
In this appeal, Ms. Cannon primarily asserts that the ALJ substituted his own
judgment for that of Ms. Cannon’s treating physician, Dr. Branning, and the
consulting psychiatrist, Dr. Haney, and that in doing so, he committed reversible
error. Generally, the Eleventh Circuit has held that “[a]n ALJ sitting as a hearing
officer abuses his discretion when he substitutes his own uninformed medical
evaluations for those of a claimant’s treating physicians.” Marbury v. Sullivan,
957 F.2d 837, 840 (11th Cir. 1992).
Regardless of the merits of this particular contention, the court finds that the
ALJ’s disability determination is not supported by substantial evidence because of
the lack of an underlying medical opinion by a physician in support of the ALJ’s
RFC determination that Ms. Cannon is capable of performing light work with
additional restrictions given her collection of severe physical and mental
impairments and her non-severe diabetes. Accordingly, the court agrees with Ms.
Cannon that, under the circumstances of her case, the ALJ committed reversible
In the absence of a supporting medical source statement or a
physical capacities evaluation by a physician that considers the
impact of Ms. Cannon’s collection of severe impairments and her
non-severe diabetes, the ALJ’s physical RFC determination that
she can perform a reduced range of light work is not supported by
The court has been unable to locate a medical source opinion5 or a physical
capacities evaluation conducted by a physician (and relied upon by the ALJ) that
substantiates Ms. Cannon is capable of performing a reduced range of light work
given her severe physical impairments of hypertension, obesity, carpal tunnel
syndrome, and a foot fracture as well as her non-severe diabetes.
undersigned has observed on numerous occasions, “[s]uch an omission from the
As a result, the court does not reach the merits of the other issues presented on appeal.
Medical source statements are “medical opinions submitted by acceptable medical sources,
including treating sources and consultative examiners, about which an individual can do despite a
severe impairment(s), in particular about an individual’s physical and mental abilities to perform
work-related activities on a sustained basis. Medical source statements are to be based on the
medical sources’ records and examination of the individual; i.e., their personal knowledge of the
individual. Therefore, because there will frequently be medical and other evidence in the case
record that will not be known to a particular medical source, a medical source statement may
provide an incomplete picture of the individual’s abilities.” SSR 96-5p.
record is significant to the substantial evidence inquiry pertaining to the ALJ’s
RFC determination.” See, e.g., Cole-Smith v. Astrue, No. 2:11-CV-2857-VEH,
2012 WL 1946766, at *5 (N.D. Ala. May 29, 2012) (citing Rohrberg v. Apfel, 26
F. Supp. 2d 303, 311 (D. Mass. 1998) (“The ALJ failed to refer to—and this Court
has not found—a proper, medically determined RFC in the record.”)).
As another district judge of this court aptly explained the RFC issue in the
context of an ALJ who comparably determined, without the benefit of a physical
capacities evaluation conducted by a physician, that the claimant was not disabled:
While the Record contains Ms. Rogers’[s] medical treatment
history, it lacks any physical capacities evaluation by a physician. The
ALJ made his residual functional capacity evaluation without the
benefit of such evaluation. An ALJ is allowed to make some
judgments as to residual physical functional capacity where so little
physical impairment is involved that the effect would be apparent to a
lay person. Manso–Pizarro v. Secretary of Health and Human
Services, 76 F.3d 15 (1st Cir.1996). In most cases, including the case
at bar, the alleged physical impairments are so broad, complex, and/or
ongoing that a physician's evaluation is required. Id. In order to have
developed a full, fair record as required under the law, the ALJ should
have re-contacted Ms. Roger’s [sic] physicians for physical capacities
evaluations and/or sent her to physicians for examinations and
physical capacities evaluations. Further, Ms. Rogers’[s] ability to lift
and to manipulate objects must be thoroughly evaluated by at least
one physician. These evaluations shall be obtained upon remand. Ms.
Rogers’[s] residual functional capacity was not properly determined
nor supported by substantial evidence in this case.
Rogers v. Barnhart, No. 3:06–CV–0153–JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16,
2006) (emphasis added); see also Manso–Pizarro, 76 F.3d at 17 (“With a few
exceptions (not relevant here), an ALJ, as a lay person, is not qualified to interpret
raw data in a medical record.” (emphasis added) (citing Perez v. Sec'y of Health &
Human Servs., 958 F.2d 445, 446 (1st Cir.1991))); Rohrberg, 26 F. Supp. 2d at 311
(“An ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical
findings, and as a result an ALJ's determination of RFC without a medical
advisor’s assessment is not supported by substantial evidence.” (emphasis added)
(citing Rodriguez v. Sec’y of Health & Human Servs., 893 F.2d 401, 403 (1st Cir.
1989))); cf. Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir. 1973) (“To meet
such a prima facie case it is not sufficient for the government to rely upon
inconclusive medical discussion of a claimant’s problems without relating them to
the claimant's residual capacities in the field of employment.”) (emphasis added).
Thus, when an ALJ makes an RFC determination about a claimant, who, like
Ms. Cannon, has a complex medical history and who suffers from several severe
impairments, without the benefit of a supporting medical source statement or a
physical capacities evaluation, he risks substituting his own medical judgment for
that of a physician, and, regardless, lacks substantial evidence to support his
Dr. Branning’s Physical Capacity Evaluation
Against the above analysis, the ALJ could not have used Dr. Branning’s
physical capacity evaluation (Tr. 362) to make his RFC determination because he
specifically discounts that opinion. In particular, the ALJ found that Dr. Branning’s
assessment was inconsistent with the medical records as a whole. Additionally,
Dr. Branning concluded differently than the ALJ that Ms. Cannon was physically
capable of performing light exertional work. Therefore, such medical
documentation cannot constitute substantial evidence in support of the ALJ’s RFC
Dr. Carmichael’s Physical Summary
The ALJ also cannot point solely to the physical summary supplied by R.
Glenn Carmichael (“Dr. Carmichael”), a non-examining state agency consultative
physician, to support his RFC determination. (Tr. 245). After conducting a paper
review, Dr. Carmichael concluded on July 26, 2007, that Ms. Cannon could
perform medium work “with safety precautions [and avoiding] excessive heat and
cold. (Id.). In formulating his RFC for Ms. Cannon, the ALJ indicated that he
“[gave] more weight to the state agency medical consultant opinion . . . (Exhibit
B8F).” (Tr. 18).
One problem with the ALJ’s reliance upon this summary is that Dr.
Carmichael’s opinion does not reflect that he factored in the vocational impact of
Ms. Cannon’s foot fracture, an impairment the ALJ found to be severe. Instead,
Dr. Carmichael identifies only Ms. Cannon’s severe level II obesity, hypertension,
and carpal tunnel syndrome in providing his exertional opinion. (Tr. 245).
Another issue with Dr. Carmichael’s assessment is that Ms. Cannon’s
diabetes diagnosis is not referenced. Although the ALJ found this condition to be
not severe, when determining disability “[t]he ALJ must consider the applicant’s
medical condition taken as a whole.” Jamison v. Bowen, 14 F.2d 585, 588 (11th
Cir. 1987); see 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your
medically determinable impairments of which we are aware, including your
medically determinable impairments that are not ‘severe,’ as explained in §§
404.1520(c), 404.1521, and 404.1523, when we assess your residual functional
capacity.”); cf. Jamison, 14 F.2d at 588 (“At step three the ALJ must determine if
the applicant has a severe impairment or a combination of impairments, whether
severe or not, that qualify as a disability.”) (emphasis added).
Finally, based upon the Eleventh Circuit’s decision in Sharfarz v. Bowen,
825 F.2d 278 (11th Cir. 1987), the court questions whether a vocational opinion
from a non-examining physician like Dr. Carmichael can constitute substantial
evidence in support of an RFC finding. See Sharfarz, 825 F.2d at 280 (“The only
opinions that indicated that appellant could meet the medium work requirements of
20 C.F.R. 404.1567(c) (1986) were those of the nonexamining physicians, Drs.
Thomas and Register. Their opinions were entitled to little weight, however, and
could not serve as substantial evidence.”) (emphasis added); see also Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir.1985) (holding that “taken alone” the
opinions of non-examining physicians “do not constitute substantial evidence on
which to base an administrative decision”). Thus, akin to Sharfarz and Broughton,
Dr. Carmichael’s vocational opinion cannot constitute substantial evidence in
support of the ALJ’s physical RFC finding.
Dr. Crouch’s Medical Records
Dr. Crouch’s medical records also do not provide sufficient detail regarding
Ms. Cannon’s exertional abilities to support the ALJ’s RFC determination. (Tr.
221-23). As explained above, when a doctor’s records contain only clinical
findings and diagnoses that are not couched in terms of a claimant’s exertional
abilities, then, as a general proposition, the ALJ does not have the expertise to
formulate an RFC based on those bare medical records.
Here, none of Dr. Crouch’s documents includes an opinion about Ms.
Cannon’s impairments in vocational terms, attaches a physical capacities
evaluation of her, or otherwise unambiguously suggests that she can perform a
reduced range of light work. See, e.g., Rohrberg, 26 F. Supp. 2d at 311 (“Where
the ‘medical findings in the record merely diagnose [the] claimant’s exertional
impairments and do not relate these diagnoses to specific residual functional
capabilities such as those set out in 20 C.F.R. § 404.1567(a) . . . [the Commissioner
may not] make that connection himself.’” (quoting Rosado v. Sec’y of Health &
Human Servs., 807 F.2d 292, 292 (1st Cir. 1986))).
Instead, such records amount only to “raw physical findings” the caliber of
which this court has previously found to be ineffective evidence for corroborating
an RFC. Cole-Smith, 2012 WL 1946776, at *6. Like the medical records in ColeSmith, the physical examination supplied by Dr. Crouch and seemingly relied upon
by the ALJ does not provide an indication of how Ms. Cannon fits into the residual
functional capacity scheme outlined in 20 C.F.R. § 404.1567.
For example, Dr. Crouch’s written summary on Ms. Cannon’s blood
pressure, medication, height, weight, whether her “fundoscopic exam” reveals
“hemorrhages, exudates, AV nicking, [or] pappilledema,” and the extent of her
“thyromegaly,” (Tr. 222-23), does not give the ALJ a basis for determining Ms.
Cannon’s physical RFC. Although Dr. Crouch does address Ms. Cannon’s range
of motion in her wrists and ankles, her capacity to walk and squat, and her ability
to get off and on the exam table (Tr. 223), such reporting is not the equivalent of a
physical capacity evaluation that specifies a claimant’s exertional abilities as they
relate to 20 C.F.R. § 404.1567.
Dr. Crouch’s reporting is particularly vague with regard to Ms. Cannon’s
ability to lift, the extent of her walking ability, and her capacity to push and pull.
Comparable to Cole-Smith, Rogers, Manso–Pizarro, and other similar cases, a lay
person such as an ALJ is not able to discern Ms. Cannon’s work-related exertional
abilities and appropriate non-exertional restrictions based upon the unfiltered
information contained in her medical records. Thus, because there was no suitable
physical capacity evaluation or other medical documentation that relates Ms.
Cannon’s medical information to her functional abilities, the court finds that the
ALJ must have erroneously made an RFC determination by interpreting the bare
medical findings on his own.6
Moreover, the lack of a medically-determined physical RFC that supports
the ALJ’s RFC determination is particularly critical here when, undisputably, Ms.
Cannon is not able to perform relevant past work given the additional job-related
restrictions that the ALJ placed on her at the light exertional level.
undersigned has previously recognized in another fifth-step burden decision that
similarly resulted in a remand for further development of the claimant’s functional
Alternatively, even if Dr. Crouch’s medical records were sufficient to substantiate the ALJ’s RFC
determination, the ALJ still committed reversible error because he failed to state the weight that the
gave to that examination as required by Sharfarz. 825 F.2d at 279 (“In assessing the medical
evidence in this case, the ALJ was required to state with particularity the weight he gave the
different medical opinions and the reasons therefor. (citing MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir.1986))); see also Gaught v. Astrue, No. 6:11–CV–2681–VEH, 2012 WL 1745525
at *4-5 (N.D. Ala. May 14, 2012).
The Eleventh Circuit has held that the absence of a physician’s
opinion regarding a plaintiff's functional limitations does not morph
into an opinion that the plaintiff can work. Lamb v. Bowen, 847 F.2d
698, 703 (11th Cir.1988). “Such silence is equally susceptible to
either inference, therefore, no inference should be taken.” Id.
Clemmons v. Barnhart, No. 3:06–CV–1058–VEH, (Doc. 22 at 11) (N .D. Ala. June
11, 2007); cf. Reeves v. Heckler, 734 F.2d 519, 522 n.1 (“It is reversible error for
an ALJ not to order a consultative examination when such an evaluation is
necessary for him to make an informed decision.” (citing Ford v. Sec’y of Health &
Human Servs., 659 F.2d 66, 69 (5th Cir. 1981) (Unit B))).7
Therefore, in the absence of a medical source statement and/or any physical
capacities evaluation conducted on Ms. Cannon by a physician that corroborates
the ALJ’s determination that she is capable of performing light work with certain
non-exertional restrictions despite her physical impairments of (i) severe
hypertension; (ii) severe obesity; (iii) severe carpal tunnel syndrome; and (iv) nonsevere diabetes, the record has not been adequately developed. See, e.g., Cowart v.
Schweiker, 662 F.2d 731, 732 (11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d
218, 219 (8th Cir. 1979)); see also Sobolewski v. Apfel, 985 F. Supp. 300, 314
(E.D.N.Y. 1997) (“The record’s virtual absence of medical evidence pertinent to
In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit adopted
as binding precedent all decisions of the Unit B panel of the former Fifth Circuit handed down after
September 30, 1981.
the issue of plaintiff's RFC reflects the Commissioner’s failure to develop the
record, despite his obligation to develop a complete medical history.”).
Likewise, the ALJ’s determination that Ms. Cannon can perform light work
with certain non-exertional restrictions is not supported by substantial evidence.
Accordingly, the decision of the Commissioner is due to be reversed, and the case
remanded for further proceedings consistent with this memorandum opinion.
The ALJ’s Mental RFC Determination Is Also Deficiently
In addition to her severe physical impairments, the ALJ also determined that
Ms. Cannon suffers from severe depression. In conducting a consultative mental
examination of Ms. Cannon, Dr. Haney, a specialist, opined that she “appeared
quite depressed” and that her “ability to function in most jobs appeared moderately
to severely impaired due to the patient’s physical and emotional limitations.” (Tr.
226). Regarding Ms. Cannon’s work-related restrictions relating to her depressive
condition, the ALJ disregarded Dr. Haney’s findings over Dr. Crouch’s medical
examination and the mental residual functional capacity assessment provided by a
state agency medical consultant, Aileen McAlister, M.D. (“Dr. McAlister”) on July
17, 2007. (Tr. 241-44). In Dr. McAlister’s report, she opined that Ms. Cannon was
not significantly limited in most areas of mental functioning or only just
moderately limited in others. (Tr. 241-42).
The ALJ’s reliance upon Dr. Crouch’s report to substantiate the vocational
impact of Ms. Cannon’s severe depression is flawed for the same reasons that the
court found it to be inadequate to sustain the ALJ’s physical RFC finding–Dr.
Crouch’s raw physical findings are not the equivalent of a functional assessment of
Ms. Cannon’s mental abilities. Indeed, there is no indication that Dr. Crouch ever
even considered Ms. Cannon’s severe depression as a diagnosis, much less its
impact in vocational terms.
In crediting the opinion of Dr. McAlister over that of Dr. Haney, the ALJ
indicated that he gave “great weight to the state agency medical consultant opinion
in July 2007 that the claimant had no more than moderate mental restrictions since
it is compatible with the record.” (Tr. 19). The ALJ provided no explanation of
why he found Dr. McAlister’s assessment to be “compatible with the record.”
As the Eleventh Circuit explained in Sharfarz:
In assessing the medical evidence in this case, the ALJ was required to
state with particularity the weight he gave the different medical
opinions and the reasons therefor. MacGregor v. Bowen, 786 F.2d
1050, 1053 (11th Cir.1986). Further, he was required to accord
considerable weight to appellant’s treating physician’s opinion absent
good cause for not doing so. Broughton v. Heckler, 776 F.2d 960,
961-62 (11th Cir.1985) (per curiam). The opinions of nonexamining,
reviewing physicians, such as those of Drs. Thomas and Register,
when contrary to those of the examining physicians, are entitled to
little weight, and standing alone do not constitute substantial
evidence. See Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094
(11th Cir. 1985) (per curiam). Of course, the ALJ may reject any
medical opinion if the evidence supports a contrary finding. Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir.1985) (per curiam).
825 F.2d at 279-280 (emphasis added).
The court concludes that the ALJ’s assignment of more weight to the
opinion of Dr. McAlister runs afoul of Sharfarz because, after obtaining the results
of the consultative examination that he ordered to develop the record further, his
decision to favor the prior opinion by Dr. McAlister lacks any elaboration,8 and as
an opinion in conflict with the examining one completed by Dr. Haney, it is
entitled to “little weight.” Additionally, under Sharfarz, the opinion of Dr.
McAlister cannot constitute substantial evidence.
Furthermore, having disregarded Dr. Haney’s opinion, no other functional
proof provided by a physician exists in the record to corroborate the ALJ’s mental
RFC determination for Ms. Cannon. Therefore, the disability decision of the ALJ is
alternatively due to be remanded because the ALJ’s mental RFC finding for Ms.
Cannon is deficiently supported.
While an ALJ is not obligated to “specifically refer to every piece of evidence in his decision,”
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005), here, some pinpointing of evidentiary
support is needed for the court to verify whether substantial evidence supports the ALJ’s assignment
of weight to the medical opinions contained in the record. Cf. Popock v. Astrue,374 Fed. App’x,
903, 905 (11th Cir. 2010) (“Furthermore, the ALJ offered no explanation for his decision to adopt
the consultants’ assessment over Dr. Griscom’s, except to say that Dr. Griscom’s assessment was
‘slightly more restrictive than warranted.’”).
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, this court finds that the Commissioner’s final decision
is not supported by substantial evidence.
Accordingly, the decision of the
Commissioner will be remanded by separate order.
DONE and ORDERED this the 25th day of July, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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