Perez v. Social Security Administration, Commissioner

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 9/30/16. (MRR, )

FILED
2016 Sep-30 AM 11:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
EDWIN OMAR PEREZ,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No. 5:15-cv-01037-TMP

MEMORANDUM OPINION
The plaintiff, Edwin Omar Perez, himself a former employee of the Social
Security Administration, appeals from the decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his application for a
period of disability and Disability Insurance Benefits (“DIB”). Mr. Perez timely
pursued and exhausted his administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The
parties have consented to the exercise of dispositive jurisdiction by a magistrate
judge pursuant to 28 U.S.C. § 636(c). (Doc. 21).

Page 1 of 29

I.

Introduction

Mr. Perez was 57 years old on his alleged disability onset date of December 7,
2006. His past work experience includes employment as an eligibility worker for
the Social Security Administration. (Tr. at 699). Mr. Perez claims that he became
disabled due to pain and physical dysfunction stemming from herniated discs in his
neck and back and diverticulitis. (Tr. at 112, 693).
Formerly employed as an eligibility worker for the Social Security
Administration, Mr. Perez was granted a disability retirement by the Office of
Personnel Management (“OPM”), effective March 6, 2007, under the Federal
Employees Retirement System (“FERS”) .
FERS disability retirement required the claimant to apply for Social Security DIB.
Because the procedural history of the instant case is irregular, the court
includes the following discussion by the Administrative Law Judge:
In August 2006, the claimant applied for disability benefits under the
Federal Old Age, Survivors and Disability Insurance Program
(OASDI), 42 U.S.C. § 401 et seq., and under the Supplemental
Security Income for the Aged, Blind and Disabled Program (SSI), 42
U.S.C. § 1381, et seq. (sometimes referred to herein as the Act). He
later filed new applications, which the Appeals Council consolidated
with the previous applications. He initially alleged his disability onset
date to be August 1, 2005, but that date was amended to December 7,
2006.

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The claimant’s applications were denied initially and on
reconsideration [a]t his request, an Administrative Law Judge
(“ALJ”) held a hearing. After considering the hearing testimony and
other information in the record, the ALJ concluded that the claimant
could perform his past relevant work. Therefore, the ALJ found that
the claimant was not disabled.
The claimant asked the Appeals Council to review the AL[J]’s
decision. On October 7, 2009, the Appeals Council found no reason
to review the ALJ’s decision.
Thereafter, the claimant sought review of the Commissioner’s final
decision in the United States District Court for the Middle District of
Florida, Orlando Division. That court reversed the decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g) and
remanded the case for further proceedings. Thereafter, the Appeals
Council vacated the previous final decision and remanded the case for
further proceedings.
On remand, the ALJ held another hearing. The claimant, represented
by an attorney, and a vocational expert (“VE”) testified at the
hearing. After considering the hearing testimony as well as the
evidence of record, the ALJ again found that the claimant was not
disabled in a decision dated October 12, 2012.
Thereafter, the claimant sought review of the Commissioner’s final
decision in the United States District Court for the Middle District of
Florida, Orlando Division. On February 22, 2012, that Court reversed
the decision of the Commissioner under sentence four of 42 U.S.C.
§ 405(g) and remanded the case for further proceedings once more.
Thereafter, the Appeals Council vacated the October 12, 2012 final
decision and remanded the case for further proceedings on March 12,
2014.
This case is before the undersigned ALJ on that March 12, 2014
remand from the Appeals Council pursuant to the February 22, 2012
remand from the United States District Court for the Middle District
of Florida, Orlando Division.
Page 3 of 29

...
Pursuant to the District Court remand order, the Appeals Council has
directed the undersigned to take any further action needed to
complete the administrative record and issue a new decision,
consistent with the order of the District Court.

(Tr. at 688-89).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
he is, the claimant is not disabled and the evaluation stops. Id. If he is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
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three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, he will be found disabled without further
consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step. 20
C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite his or her impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent him from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his past relevant
work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step
five requires the court to consider the claimant’s RFC, as well as the claimant’s
age, education, and past work experience, in order to determine if he or she can do
other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can
do other work, the claimant is not disabled.

Id.

The burden is on the

Commissioner to demonstrate that other jobs exist in the local and national
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economy that the claimant can perform; and, once that burden is met, the claimant
must prove his inability to perform those jobs in order to be found disabled. Jones
v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process in this case, the ALJ found that
Mr. Perez last met the insured-status requirements of the Social Security Act on
December 31, 2011. (Tr. at 691). He further determined that Mr. Perez has not
engaged in substantial gainful activity since the alleged onset of his disability,
December 7, 2006, through his last insured date of December 31, 2011.

Id.

According to the ALJ, Plaintiff’s cervical spine degenerative disc disease with
spondylosis, protruding discs at C4-5, C5-6, and C6-7, and lumbar degenerative
disc disease with bulging discs at L3-4 and L4-5 are considered “severe” based on
the requirements set forth in the regulations. Id. The ALJ also determined that the
plaintiff has the non-severe impairments of diabetes, sleep apnea, and right knee
tendonitis. Id. However, he found that, through the plaintiff’s date last insured,
his impairments neither met nor medically equaled any of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 692).
Turning to the task of determining the claimant’s RFC, the ALJ did not find
Mr. Perez’s subjective complaints of pain to be totally credible, and he determined

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that Mr. Perez had the following RFC during the relevant time period before
December 31, 2011:
[H]e can lift 15 pounds occasionally; he can frequently lift 8 pounds;
he should not lift above shoulder level; he can sit for 6 hours out of 8
hours for no longer than 30 minutes at a time without a sit/stand
opinion, i.e. needing to change positions for 1 to 2 minutes; he can
stand for 2 out of 8 hours but not longer than 30 minutes at one time
without the ability to sit for 1 to 2 minutes; he can walk for 1 out of 8
hours but not more than 20 minutes at a time without the ability to sit
for 1 to 2 minutes; he can occasionally climb stairs with a railing; he
can occasionally kneel; he can occasionally crawl, stoop, and bend, but
not repetitively; he should avoid ladders, scaffolds, CW, heavy,
vibratory machinery, unprotected heights, and extreme cold exposure;
he should avoid repetitive twisting of the cervical or lumbar spine.
(Tr. at 692, 696).
Based on this RFC, the ALJ determined at Step Four of the sequential
analysis that, through the date last insured, the plaintiff was able to perform his past
relevant work as an “eligibility worker.” (Tr. at 699). An eligibility worker is
defined under the rules as skilled work performed at a sedentary exertion level. Id.
The ALJ determined that performance of such work did not require performance of
any work-related activity not allowed by the RFC assessment. Id. The ALJ
concluded his findings by stating that Plaintiff “was not under a disability, as
defined in the Social Security Act, at any time from December 7, 2006, the alleged
onset date, through December 31, 2011, the date last insured.” Id.
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II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar.
Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that the
evidence preponderates against the Commissioner’s decision, the court must
affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400.
No decision is automatic, however, for “despite this deferential standard [for
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review of claims] it is imperative that the court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal
standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.”

20 C.F.R. §§ 404.1527(e), 416.927(d).

Whether the

plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record
supporting it.

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III.

Discussion
Mr. Perez alleges that the ALJ’s finding is not supported by substantial

evidence for three reasons. First, he asserts that the ALJ erred as a matter of law by
failing to give “great weight” to the Office of Personnel Management’s (“OPM”)
decision that the plaintiff could no longer perform his past relevant work. Second,
the plaintiff argues that the ALJ failed to give proper weight to the plaintiff’s
treating orthopedist, Dr. Jackson. Third, the plaintiff argues that the ALJ’s RFC
determination is not supported by substantial evidence.
A. OPM’s Determination
The Code of Federal Regulations is clear that “[a] decision by any
nongovernmental agency or any other governmental agency about whether you are
disabled . . . is based on its rules and is not our decision. . . . We must make a
disability or blindness determination based on social security law. Therefore, a
determination made by another agency that you are disabled or blind is not binding
on us.” 20 C.F.R. § 404.1504. However, the CFR does define as evidence of
disability “[d]ecisions by any governmental or nongovernmental agency about
whether or not you are disabled or blind.” 20 C.F.R. § 404.1512(b)(1)(v). The
Eleventh Circuit addressed the weight due to findings of disability by other
government agencies in Bloodsworth v. Heckler, stating that “[t]he findings of
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disability by another agency, although not binding on the Secretary [now
Commissioner], are entitled to great weight.” 703 F.2d 1233, 1241 (11th Cir. 1983)
(emphasis added); citing Rodriguez v. Schweiker, 640 F.2d 682, 686; Epps v. Harris,
624 F.2d 1267, 1274 (5th Cir. 1980); De Paepe v. Richardson, 464 F.2d 92, 101 (5th
Cir. 1972).
The Eleventh Circuit further discussed the issue the following year in Falcon v.
Heckler, stating,
The Deputy Commissioner of the Division of Worker’s
Compensation for the State of Florida found Falcon temporarily
totally disabled from April 1979 up to at least November 1980.
Generally, “[t]he findings of disability by another agency, although
not binding on the Secretary, are entitled to great weight.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (11th Cir. 1983).
The definitions of disability under Florida’s worker’s compensation
law and federal social security law differ. Compare Fla. Stat. Ann. Sec.
440.02(9) (West Supp. 1984) with 20 C.F.R. 404.1505(a)(1983).
However, the Florida Supreme Court has interpreted the Florida
statute in such a way that the Florida statute operates similarly to the
definition under the federal regulations. See Port Everglades Terminal
Co. v. Canty, 120 So. 2d 596 (Fla. 1960) (establishing variety of factors
to consider in making disability determinations and shifting burden to
employer only after employee has shown he can do only specially
created job); Southern Bell Telephone & Telegraph v. Bell, 116 So. 2d
617 (Fla. 1959) (providing that ability to compete in job market
measured by ability to work in any job with no mention of wage
comparison). Because the two disability definitions actually are
construed in a like manner, the ALJ erred in not giving great weight to
the Florida agency’s finding of temporary total disability and on
remand must accord the finding its proper weight.
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732 F.2d 827, 831 (11th Cir. 1984). The discussion in Falcon appears to indicate
that one reason an ALJ may cite for giving less than great weight to the finding of
disability by another government agency is that the definition of disability used by
the other organization differs from that used by Social Security.
On March 5, 2007, the OPM issued a letter to the plaintiff confirming his
disability. The letter states:
Our records show that you claim you were disabled due to spine
problems, degenerative disc disease, osteophyte formation, left hip
degenerative changes, spinal stenosis, bulging discs, spondylitic bulge,
ventral cord impingement, nerve root displacement, hiatal hernia,
diverticulitis, and severe allergies. However, in reviewing your
medical records we have found you to be disabled for your position as
a Telephone Service Representative, due to severe neck pain.
(Tr. at 174). No further discussion from the OPM is provided in the record, and
the OPM’s letter does not specifically address which medical records were
examined in reaching the conclusion of disability. The plaintiff argues that the
finding of disability is entitled to great weight, while the defendant argues that the
ALJ appropriately articulated his reasons for failing to ascribe great weight to the
OPM determination.
The ALJ addressed the OPM’s decision as follows:

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The record also contains a determination by the Office of Personnel
Management (“OPM”) that the claimant was unable to perform his
prior work activity (Exhibit 17E). However, there is no record as to
what OPM considered in regard to making that determination;
whether it involved determining physical limitations; or whether there
were any administrative problems in the claimant returning to work.
In finding disability for social security purposes, more than a general
determination of disability is required and the undersigned is directed,
by Social Security Rulings and Regulations to [] determine the
claimant’s ability to perform some such activities, among others, as
ability to stand, walk, sit, bend, stoop, climb, balance, and engage in
work activities requiring possible environmental exposures. The
undersigned asked the attorney at the hearing whether there was any
additional input that he could provide or any additional records as to
what was a [sic] considered and how it was considered by OPM, and
the undersigned was met with an affirmative answer that the record
contained all that was available.
Although the administrative law judge is required to give
consideration and some form of weight to a determination by another
agency that an individual is disabled, such is not binding on the Social
Security Administration pursuant to 20 CFR 404.1504. Although this
case does involve an unusual situation in which an employee of the
Social Security Administration was found by OPM, the designated
party for determining disability for the Social Security Administration
as well as other federal employees to be unable to perform his previous
job and in which another ALJ previously decided that he could
perform that job, the administrative law judge is unable to ascertain
from what is available the circumstances, tenor and specific
restrictions that were implied or considered by OPM in its
determination. Hence, the administrative law judge must decline to
give any significant weight to that determination in the absence of
specific findings and conclusions other than a determination that
regards an issue that is reserved to the commissioner and not OPM.
(Tr. at 698).
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Eleventh Circuit case law consistently holds that disability determinations
from other government agencies are entitled to great weight from the outset, and
then, if there is good cause, the ALJ may articulate why he or she depreciates that
weight. See Boyette v. Commissioner of Soc. Sec., 605 F. App'x 777, 779 (11th Cir.
2015); Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (11th Cir. 1983); Rodriguez v.
Schweiker, 640 F.2d 682, 686 (5th Cir. 1981). By stating that only “consideration
and some form of weight” is required for the OPM’s determination, the ALJ
applied the incorrect legal standard. (Tr. at 698). The ALJ is not bound by that
other agency’s opinion, as the CFR makes clear, but the ALJ must begin by giving
the agency opinion great weight and step down from there if the facts warrant it,
giving a clear explanation for why less than great weight is accorded.
Even if the ALJ was not required to state explicitly that the OPM
determination was entitled to great weight, he failed to explain adequately why he
gave only “consideration and some form of weight” to it. Unlike Kemp v. Astrue,
308 F. App'x 423, 426 (11th Cir. 2009), where the court of appeals found that the
ALJ “implicitly” assigned great weight to the VA’s determination of a disability
because he “continuously refer[red] to the VA's evaluations and disability rating
throughout the evaluation process,” the only reference to the OPM disability
determination in this case is a passing reference. Indeed, the ALJ expressly did not
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undertake a thorough analysis of the OPM determination because “the
administrative law judge is unable to ascertain from what is available the
circumstances, tenor and specific restrictions that were implied or considered by
OPM in its determination.”

(Tr. at 698).

The ALJ “declined to give any

significant weight” to the OPM decision not because there were differences in the
standards applied by the different agencies or because of shortcomings in the
evidence considered by the OPM. He declined to give great weight precisely
because the administrative record before him was incomplete.

Nothing here

indicates, unlike in Kemp v. Astrue, that the ALJ carefully considered the OPM
determination and concluded that it was not entitled to great weight. The record
here makes clear that the ALJ conducted no review of the basis for the OPM’s
decision.
The ALJ’s explanation for his inability to review of the basis for the OPM
determination was that neither plaintiff not plaintiff’s counsel presented that
evidence. 1 Yet the ALJ made no effort to obtain records from the Social Security
Administration itself or the OPM that could shed light on the information before
the OPM.

Because the claimant was an employee of the Social Security

1

The ALJ wrote, “The undersigned asked the attorney at the hearing whether there was any
additional input that he could provide or any additional records as to what was a [sic] considered
and how it was considered by OPM, and the undersigned was met with an affirmative answer
that the record contained all that was available.”
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Administration, and therefore, it was the SSA that submitted the application for
disability retirement to the OPM for plaintiff, its own records should have
contained information revealing whether, as claimant contends, the SSA certified
to the OPM that there was no employment accommodation available for the
plaintiff.

Likewise, there is no indication that the ALJ attempted to secure

additional information from the OPM.
Although claimants must establish their eligibility for benefits, Social
Security courts are inquisitorial, not adversarial, and the ALJ has a duty to fully and
fairly develop the record where important information is missing. See Ingram v.
Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). That is
particularly true here where the additional information is to be found in the records
of the Social Security Administration itself as the plaintiff’s employer. If, as
asserted by the claimant, 2 the SSA certified to the OPM that there was no

2

This assertion is not without some validity in fact. OPM disability retirement eligibility rules
require a finding that for the employee seeking retirement, “Accommodation of the disabling
medical condition in the position held must be unreasonable.” 5 C.F.R. § 844.103(a)(4).
Whether accommodation “in the position held” is possible or unreasonable is certified by the
employing agency on a standard form, “Agency Certification of Reassignment and
Accommodation Efforts.” OPM Standard Form 3112D (annexed to Claimant’s Reply Brief,
Doc. 19-1). If the SSA completed such a form as part of plaintiff’s OPM disability retirement
(and there is no reason to believe he would have been approved for retirement without it), a copy
of it should be in the plaintiff’s employment records at the SSA. The ALJ had a duty at least to
look for such a record in the files of his own agency. If the ALJ needed more information to
understand the basis of the OPM’s disability-retirement determination, he knew where to look.
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accommodation available that would allow him to return to work at the SSA, this is
significant information the ALJ was required to try to develop.
In sum, the court finds that the ALJ applied an incorrect rule of law by failing
to assign “great weight” to the determination made by the OPM. Further, his
explanation for assigning only “some form of weight” was not based on substantial
evidence, but, expressly, on no evidence. The failure of the ALJ to take at least
minimal steps to obtain additional information about the OPM’s determination
violated the Commissioner’s duty to fully and fairly develop the record, especially
where that additional information was likely in the Social Security Administration’s
own employment files. Because the ALJ determined erroneously at Step Four of
the sequential analysis that the plaintiff could perform his past relevant work,
despite the OPM’s determination (allegedly based in part on a certification of no
reasonable accommodation by the SSA itself) that he could not, the ALJ never
made any findings about his ability to perform other work available in the economy
at Step Five of the analysis.
B. Treating Physician Diagnosis
The plaintiff further argues that the ALJ erred by failing to give appropriate
weight to the opinion of Dr. Jackson, the plaintiff’s treating orthopedist. A treating
physician’s testimony is entitled to “substantial or considerable weight unless
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‘good cause’ is shown to the contrary.” Crawford v. Commissioner of Social Security,
363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)) (internal quotations omitted). The weight to be afforded a medical
opinion regarding the nature and severity of a claimant’s impairments depends,
among other things, upon the examining and treating relationship the medical
source had with the claimant, the evidence the medical source presents to support
the opinion, how consistent the opinion is with the record as a whole, and the
specialty of the medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Furthermore, “good cause” exists for an ALJ not to give a treating physician’s
opinion substantial weight 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) (citing Lewis,
125 F.3d at 1440); see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)
(holding that “good cause” existed where the opinion was contradicted by other
notations in the physician’s own record).
The Court must also be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the application
of vocational factors “are not medical opinions, . . . but are, instead, opinions on
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issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The Court is interested in the
doctors’ evaluations of the claimant’s “condition and the medical consequences
thereof, not their opinions of the legal consequences of his [or her] condition.”
Lewis, 125 F.3d at 1440. Such statements by a physician are relevant to the ALJ’s
findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing a claimant’s residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).
The ALJ addressed Dr. Jackson’s opinions, along with the opinions of
several other doctors, in his RFC analysis at Step Four of the sequential process.
He determined that Dr. Jackson’s opinion was entitled to little weight, explain as
follows:
The record also contains multiple opinions from Dr. Jackson, the
claimant’s other treating orthopaedist. On June 29, 2006, Dr. Jackson
opined that the claimant could return to activity as tolerated (Exhibit
5F). On October 6, 2006, Dr. Jackson opined that the claimant could
return to activity as tolerated (Exhibit 5F). On October 30, 2006, Dr.
Jackson opined that the claimant could return to activity as tolerated;
however, he also limited the claimant to no bending, no sitting longer
than 30 minutes without a 5-minute break, and maximum lifting of 15
pounds (Exhibit 4F). The limitations to “activity as tolerated” are
vague as explained above. Moreover, the October 30, 2006 opinion is,
on its face, ambiguous in multiple ways. First, it does not mention
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whether this was a permanent restriction or, like others that Dr.
Jackson had made, was for a short period, an important distinction
considering there are others contained in the record indicating specific
work-related excuses. For example, there was one of September 20,
2006 indicating that the claimant should be excused to work on
September 19, 2006 and on September 20, 2006; and another dated
October 12, 2006 indicating that the claimant may return to work on
October 16, 2006. Another ambiguity that the undersigned feels
compelled to point out is that sitting does require some form of
bending. Hence, if the claimant could not perform any bending at all
he would be precluded from sitting in any manner. The indication of
no sitting for longer than 30 minutes without a 5-minute break is also
unclear. The ambiguity is that the undersigned is unable to ascertain
from that form whether the five-minute break is a total break from any
work at all or whether it implies that the claimant should be allowed to
change position from sifting [sic] to standing or walking. Also, the
lifting restrictions are not specific. Significantly, there are no
indications of the frequency with which the claimant is capable of
lifting 15 pounds. There are also no indications as to whether such a
weight could be lifted overhead and if so, how many times. For those
reasons, Dr. Jackson’s opinion is entitled to little weight.

(Tr. at 697).
The testimony of a treating physician is entitled to substantial weight unless
good cause is shown not to give the opinion substantial weight. Good cause
includes situations in which the treating physician’s opinion is not supported by the
record or his own findings or the evidence supports a different finding. Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see
also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991). Although the
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Phillips examples are not presumed to be exhaustive, the list does not support the
idea that a treating physician’s opinion may be discredited due to “ambiguity” in
the opinion. As the court of appeals explained in Lewis v. Callahan, 125 F.3d 1436
(11th Cir. 1997):
We do not evaluate the opinions of the physicians without guidance.
The 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. MacGregor, 786 F.2d at 1053;
Broughton v. Heckler, 776 F.2d 960, 961–62 (11th Cir. 1985). A similar
preference for the opinions of treating doctors is found in the
Commissioner's regulations:
Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical
findings alone or from reports of individual examinations,
such as consultive examinations or brief hospitalizations.
20 CFR § 404.1527(d)(2). 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. MacGregor, 786 F.2d at
1053. We have found “good cause” to exist where the doctor’s
opinion was not bolstered by the evidence, or where the evidence
supported a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582
(11th Cir. 1987); Sharfarz v. Bowen, 825 F.2d 278, 280–81 (11th Cir.
1987). We have also found good cause where the doctors’ opinions
were conclusory or inconsistent with their own medical records. See
Jones v. Department of Health & Human Services, 941 F.2d 1529, 1532–
33 (11th Cir. 1991); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir.
1991).
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Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Indeed, in the case of
ambiguity, the ALJ has a responsibility to expand the record in order to clarify the
ambiguity. “[T]he ALJ generally has an obligation to develop the record. . .”
Ingram v. Commissioner, 496 F.3d 1253, 1269 (11th Cir. 2007). The ALJ must order
a consultative examination if one is needed to make an informed decision regarding
the claimant’s disability. Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984),
citing Ford v. Secretary of Health and Human Servs., 659 F.2d 66, 69 (5th Cir. 1981)
(Unit B). An ALJ may request a consultative examination “to secure needed
medical evidence, such as clinical findings, laboratory tests, a diagnosis, or
prognosis” if the record indicates “a change in [the claimant’s] condition that is
likely to affect [the claimant’s] ability to work, but the current severity of [the
claimant’s] impairment is not established.” 20 C.F.R. § 404.1519a(b)(4).
In the instant case, the ALJ did request that Dr. Levine, a Social Security
Administration expert, review the plaintiff’s medical records and testify at the
hearing, but Dr. Levine did not examine the plaintiff. (Tr. at 698). He did not,
however, reach out to Dr. Jackson for clarification of his medical opinion, nor did
he reach out to the plaintiff’s other treating physicians, Drs. Small and Patel, for
clarification of their medical opinions, all of which the ALJ determined to be
“ambiguous” and entitled to little weight. (Tr. at 696-97). The ALJ is not entitled
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to simply supplant a treating physician’s opinion for that of a non-examining
consulting physician3 based on the argument that the treating physician’s opinion
was just too hard to understand. The ALJ does not fault Dr. Jackson’s opinion for
being contrary to the record, conclusory, or unsupported by evidence – he simply
asserts that the opinion is “ambiguous.” If the treating physician’s opinion is, in
fact, ambiguous 4, the ALJ has a duty to develop the record sufficiently to clarify
those ambiguities. Ambiguity is not “good cause” to reject the treating physician’s
opinions without some effort by the ALJ to clarify the ambiguity.
C. RFC Assessment
Finally, the plaintiff asserts that the ALJ’s RFC analysis is not supported by
substantial evidence. Specifically, the plaintiff asserts that the ALJ’s determination
that the plaintiff would need to “change positions for one to two minutes every

3

The Eleventh Circuit law is clear that the opinion of a “nonexamining physician… could not
provide ‘good cause,’ since we have held that the opinion of a nonexamining physician is
entitled to little weight if it is contrary to the opinion of the claimant’s treating physician.”
Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985), citing Spencer ex rel. Spencer v.
Heckler, 765 F.2d 1090, 1093–94 (11th Cir.1985).

4

For the most part, the examples of ambiguity in Dr. Jackson’s opinion cited by the ALJ are not
ambiguous. When Dr. Jackson stated that the plaintiff could not sit “for longer than 30 minutes
without a 5-minute break,” the meaning was quite clear—every thirty minutes the plaintiff must
be allowed not to sit, to get up from sitting for at least five minutes. Also, the ALJ’s assertion
that sitting is the same as bending is an example of the ALJ substituting his own pseudo-expert
opinion over that of the orthopedist. The ALJ is not an expert in biomechanics and cannot
express the opinion that sitting involves the same stresses on the spine as bending. Also the ALJ
found ambiguous Dr. Jackson’s statement that plaintiff could not lift more than 15 pounds
because it was not clear how frequently plaintiff could lift 15 pounds. There is no ambiguity.
Dr. Jackson said fifteen pounds was the maximum the plaintiff could lift—period, full stop.
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thirty minutes” is not supported by substantial evidence because the ALJ adopted
Dr. Levine’s findings rather than Dr. Jackson’s, who is the plaintiff’s treating
physician. (Doc. 12, p. 24). It already has been determined that the ALJ erred in
failing to either 1) give Dr. Jackson’s opinion as a treating physician substantial
weight or 2) articulate any valid reasons – other than supposed ambiguity –that Dr.
Jackson’s opinion is not entitled to substantial weight.
During the hearing, Dr. Levine attested that the plaintiff would need a
sit/stand option and could not remain seated for more than 30 minutes at a time
without the option to change positions. (Tr. at 728). Levine stated that the
plaintiff would need to change positions for one to two minutes. Id. When asked
about the discrepancy between his finding and Dr. Jackson’s opinion that the
plaintiff would need 5 minutes of position changes, Levine simply noted that it was
“my opinion versus his.”

(Tr. at 732).

The difference of opinion became

significant when the Vocational Expert (“VE”) was presented with hypothetical
questions.

When she was given a hypothetical including the one to two minute

break for repositioning, she testified that the limitations “would allow access to the
past work as an eligibility worker as described by the Department of Labor.” (Tr.
at 734). When asked about five minute breaks, the exchanges proceeded as follows:

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[ALJ] Okay. Okay, okay, now if the breaks extend to five minutes,
how would that affect those jobs?
[VE] If during that five minute period he were to be off task, then that
would be excessive off task time and that does preclude all work
activity.
[ALJ] All right. But if he was able to sustain on task, what then?
[VE] Well, if able to sustain on task, then that continues to allow
access to the past work.
(Tr. at 735). When the plaintiff’s attorney questioned the vocational expert, the
attorney clarified that it is the plaintiff’s position that he needs the breaks to change
position because his pain prevents him from being on task without such breaks. Id.
According to the plaintiff, those breaks would be off-task time.
Ultimately, opinions such as the claimant’s residual functional capacity and
the application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the Commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). However, because
the ALJ’s evaluation of Dr. Jackson’s opinion as a treating physician, as well as the
ALJ’s evaluation of the OPM finding of disability, erred as a matter of law, his RFC
evaluation cannot be based on substantial evidence, as it is based on erroneous
applications of law.
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IV.

Conclusion
In 1993, the Tenth Circuit determined, in evaluating a disability claim which

had been pending for 10 years, that “[t]he Secretary is not entitled to adjudicate a
case ‘ad infinitum until it correctly applies the proper legal standard and gathers
evidence to support its conclusion,’” and remanded the case for an immediate
award of benefits. Sisco v. U.S. Dept. of Health and Human Services, 10 F.3d 739,
746 (10th Cir. 1993) (internal citations omitted).

In 2001, the First Circuit

acknowledged that,
Some circuits have exercised what we view as a form of equitable
power to order benefits in cases where the entitlement is not totally
clear, but the delay involved in repeated remands has become
unconscionable. E.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir.
2000) (remanding for payment of benefits in light of “substantial
evidence” of a severe mental disability and “considerable inexplicable
delays” resulting in passage of ten years since application). In such
cases, our sister circuits have warned the Commissioner that
administrative deference does not entitle the Commissioner endless
opportunities to get it right. See, e.g., Miller v. Chater, 99 F.3d 972,
978 (10th Cir. 1996) (remanding for fifth administrative hearing, but
cautioning “the agency that the Secretary is not entitled to adjudicate
a case ad infinitum until [she] correctly applies the proper legal
standard and gathers evidence to support [her] conclusion.”) (internal
quotations omitted).
Seavey v. Barnhart, 276 F.3d 1, 13 (1st Cir. 2001) (internal footnotes omitted).

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Such findings also have been reached within this circuit. For example, in
Goodrich v. Commissioner, the magistrate judge wrote in his Report and
Recommendation, which was adopted by the district judge:
Although the proper remedy for errors is generally not an award of
benefits, but rather a remand for further proceedings, the
Commissioner does not receive “endless opportunities to get it
right.” Seavey v. Barnhart, 276 F.3d 1, 13 (1st Cir. 2001) (citing Miller
v. Chater, 99 F.3d 972, 978 (10th Cir. 1996). “Some circuit courts
have exercised … a form of equitable power to order benefits in cases
where the entitlement is not totally clear, but the delay involved in
repeated remands has become unconscionable.” Seavey, 276 F.3d at
13 (citing Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000)
(remanding for payment of benefits in light of “substantial evidence”
of a severe mental disability and “considerable inexplicable delays”
resulting in passage of ten years since application)).
...
In this case, Plaintiff has a difficult to diagnose condition; she has
some but not all symptoms of that condition, and it took her
physicians some time to figure out what her impairments were.
However, on remand, rather than determine Plaintiff’s limitations
from dysautonomic syndrome by contacting Dr. Miles or a
consultative examiner, the ALJ found that Plaintiff did not have
dysautonomic syndrome. Yet another remand would require the
cause to go back to the ALJ for a third time and cause further delay.
The ten-year delay Plaintiff has experienced thus far is
“unconscionable.” As the court said in Rohan, “Plaintiff need not
‘wait with the patience of Job for yet another remand.[’]” 306
F.Supp. 2d at 71. Further administrative proceedings at this point will
simply prolong her waiting and delay the ultimate receipt of benefits.

Page 27 of 29

Goodrich v. Commissioner, 2012 WL 750291 *14 (M.D. Fla. Feb. 7, 2012) (internal
footnotes omitted, emphasis in original); see also Ray v. Astrue, 2009 WL 799448 *8
(M.D. Fla. March 24, 2009) (remand for benefits after a fifteen-year delay, stating
that “equitable considerations outweighed the need for further administrative
adjudication.”)
The instant case has been pending in some capacity since 2006. (Tr. at 688).
The plaintiff’s claim has been before an ALJ three times, before the Appeals
Council twice, and before a United States District Court three times, including the
instant case. The plaintiff has undisputed impairments, including cervical spine
degenerative disc disease and lumbar degenerative disc disease, which are
documented by medical records.

According to the OPM, these impairments

warranted the plaintiff’s retirement due to disability. 5 The ALJ has not called into
question these impairments, but rather has found that the claimant still is able to do
past relevant work, despite the contrary OPM determination.

Moreover, his

treating physician, Dr. Jackson, opined that plaintiff needed a five-minute break
every thirty minutes, and there has been no good cause identified for rejecting this

5

The court is aware that the OPM’s finding of disability is not binding and does not intend to
insinuate that the Commissioner is beholden to the finding of disability by another agency.
Nevertheless, it is entitle to “great weight,” which the ALJ erroneously failed to do.
Page 28 of 29

opinion. The Vocational Expert testified “that [need for a five-minute break] does
preclude all work activity.” It appears the claimant is disabled.
The court could remand the action for further proceedings by the ALJ;
however, there is a point at which continued delay becomes unjust. That point has
been reached. Accordingly, the plaintiff’s claim is due to be REVERSED and
REMANDED with the instruction to AWARD BENEFITS.
An order of final judgment will be entered contemporaneously herewith.
DONE this 30th day of September, 2016.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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