Johnson v. Astrue
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 4/18/2012. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
KIMBERLY VICTORIA JOHNSON,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial
review of a final decision of the Commissioner of Social Security denying her claim for
supplemental security income benefits. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings
in this Court. (Docs. 19 & 20 (“In accordance with provisions of 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge
conduct any and all proceedings in this case, . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”).) Upon consideration of the administrative
record, plaintiff’s brief, and the Commissioner’s brief,1 it is determined that the
Commissioner’s decision denying plaintiff benefits should be affirmed.2
Plaintiff alleges disability due to irritable bowel syndrome, depression, and pain.
Inasmuch as this is a case in which the Appeals Council entered a corrective decision
(Tr. 4-7), the corrective decision denying benefits is set out in its entirety as follows:
The claimant asked the Appeals Council to review the Administrative
Law Judge’s decision dated April 22, 2009. The Administrative Law Judge
found that the claimant was capable of performing her past relevant work
and was therefore not disabled (Findings #5 and #6).
On May 9, 2011, the Appeals Council notified the claimant and the
representative that it had granted the request for review. In that notice, the
Council proposed to issue a corrective decision finding that the claimant is
not eligible for benefits under the Social Security Act under step 5 of the
sequential evaluation process. The Council also notified the claimant and
the representative that it would consider any comments or new and
material evidence that the claimant or the representative submitted within
30 days from the date of the notice. No comments or additional evidence
have been received.
The Appeals Council has entered into the record the Council’s notice of
proposed action, which is listed in the Supplemental List of Exhibits
attached to this decision.
The Appeals Council adopts the Administrative Law Judge’s statements
regarding the pertinent provisions of the Social Security Act, Social
Security Administrative Regulations, Social Security Rulings and
The parties waived oral argument in this case. (Doc. 18; see Doc. 21.)
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 19 & 20 (“An appeal from a
judgment entered by a magistrate judge shall be taken directly to the United States court of
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
Acquiescence Rulings, the issues in the case, and the evidentiary facts, as
The regulations provide for a sequential evaluation process in
determining whether a claimant is disabled (20 CFR 416.920). The Appeals
Council agrees with the Administrative Law Judge’s findings under steps
1, 2 and 3 of the sequential evaluation [process]; namely, that the claimant
has not engaged in substantial gainful activity since March 22, 2007 and
that the claimant has severe impairments, which do not meet or equal in
severity an impairment in the Listing of Impairments. However, the
Appeals Council does not agree with the Administrative Law Judge’s
finding that the claimant has a severe mental impairment or could
perform her past relevant work as a food service worker and was
therefore not disabled.
In his decision dated April 22, 2009, the Administrative Law Judge found
that claimant’s flat feet, anemia, obesity and situational depression were
severe in combination only (Finding #2).
Due to the effects of these impairments, the Administrative Law Judge
found that the claimant could perform a full range of medium work and
could therefore perform her past relevant work, leading to a conclusion of
“not disabled” (Findings #4, #5 and #6). However, claimant’s past work
never rose to the level of substantial gainful activity and cannot therefore
be considered past relevant work (20 CFR 416.960(b)(1)). Claimant
participated in work-study while in college from 2003 to 2005 and earned
less than $3,000 in each year, well below the substantial gainful activity
level requirement for those years. Claimant’s other work in food service
was performed for a few months in 2006 and 2007, but earnings for those
periods (roughly $600 total) are also far below the level required for
substantial gainful activity. Therefore, it was an error of law to find that
the claimant could return to her past relevant work since, by definition,
she had none.
Furthermore, as part of claimant’s request for review, her attorney
submitted contentions arguing that since the Administrative Law Judge
found depression to be among claimant’s severe impairments, he should
have found corresponding non-exertional limitations in her residual
functional capacity assessment (Rep[.] Brief p.2). Claimant’s attorney also
argued that the Administrative Law Judge did not comply with Social
Security Ruling 96-8p by not including a function-by-function assessment
of her abilities in the residual functional capacity set forth in the decision
(Rep. Brief p.2).
With respect to the first contention, the Administrative Law Judge found
that based on treatment notes from Pathways Professional Counseling
(Exhibit 12F), claimant has “moderate” limitations in social functioning
because she has difficulty getting along with her mother and husband
(Decision, page 7). He also found that claimant has “moderate” limitations
in sustaining concentration, persistence and pace because she is
preoccupied with her medical concerns. (Decision, page 7). While records
show that claimant and her husband were seeing a licensed marriage and
family therapist at Pathways Professional Counseling, they do not show
formal psychological assessments or treatment for a mental disorder.
Rather, claimant and her husband were seen for six sessions, the last on
August 28, 2008, for marriage counseling (Exhibit 12F/1). There are no
other records in the file that relate to an alleged mental impairment. The
record does not contain a psychological assessment or other evidence
establishing that claimant has a medically determinable mental
impairment. When claimant went for a physical consultative exam in
August 2007, she did not mention depression and told the examiner that
she had “no other problems other than foot pain” (Exhibit 3F/1). Claimant
also denied mental health issues in her disability application.
Additionally, after she started her sessions at Pathways (July 2007),
claimant was contacted by the Social Security Administration on
September 10, 2007, and stated that she had no mental issues; it was only
the physical problem that kept her from working (Exhibit 9E).
Accordingly, the Administrative Law Judge’s finding of a severe
medically determinable mental impairment is not supported by
As to the second contention, although the decision on its face does not
appear to provide a “function by function” assessment of claimant’s
residual functional capacity, by finding that she could perform the full
range of medium work and citing 20 CFR 416.967(c), which clearly defines
that term, the Administrative Law Judge satisfied the requirements of
Social Security Ruling 96-8p. Furthermore, the evidence of record does not
support limitations greater than those found by the Administrative Law
Judge. While the record shows that claimant has sought medical treatment
for a variety of health issues, clinical findings have generally been
unremarkable (Exhibit 1F, 8F, 10F). As noted above, the record does not
establish that claimant has a medically determinable mental impairment.
In terms of her flat feet, the current record does not show that claimant
was ever seen by a podiatrist. The only record regarding this alleged
impairment is from Stephen West, M.D., a consultative examiner who
evaluated claimant in August 2007 and stated that she had 5/5/ strength,
good range of motion, negative straight leg raise tests, could do heel toe
maneuvers, fully squat and walk with a normal gait (Exhibit 3F). Based on
his examination, Dr. West indicated that he did not see any “disabling
factors” and did not recommend any functional limitations despite
finding planter (sic) fasciitis bilaterally, hypertension and migraine
headaches (Exhibit 3F/2). Finally, while the evidence reflects that claimant
has sought treatment for abdominal pain, has been prescribed medications
to treat nausea and acid reflux, and has been found to have irritable bowel
syndrome, they do not show that claimant has significant limitations as a
result of these conditions (Exhibit 5F-7F, 9F).
At the hearing, the Administrative Law Judge asked the vocational expert
about other work that the claimant could perform that exists in the
national economy. In posing a hypothetical to the vocational expert, the
Administrative Law Judge described a reduced range of medium level
work that included postural limitations, moderate situational depression,
and avoidance of hazardous machines, heights and extremes of heat and
cold (Hearing testimony). Based on this hypothetical question, the
vocational expert identified jobs that exist in significant numbers in the
national economy, including: hand packer, with 3500 jobs regionally and
800,000 jobs in the national economy; laundry worker, with 2100 jobs in
the regional economy and 675,000 jobs in the national economy; and
custodian, with 22,000 jobs in the regional economy and 1.4 million jobs in
the national economy (Hearing testimony). While the Administrative Law
Judge ultimately found that the claimant retained the residual functional
capacity for the full range of medium level work, the administrative
record supports a finding that jobs exist in significant numbers even with
the more limiting factors indicated at the hearing.
In sum, while it was an error to find the claimant “not disabled”
at step four of the sequential evaluation process, the ultimate finding of
“not disabled” is supported by substantial evidence. Accordingly, based
on claimant’s age, education, work experience and residual functional
capacity, and considering the testimony of the vocational expert at the
hearing, the Appeals Council finds the claimant “not disabled” using
Medical-Vocational Rule 203.28 as a framework for decision-making.
FINDING OF THE APPEALS COUNCIL
The Appeals Council has considered the entire record and makes the
The claimant has not engaged in substantial gainful activity
since March 22, 2007, the application date (20 CFR 416.971 et seq.).
The claimant has the following severe impairments: flat feet,
anemia and obesity, severe in combination only (20 CFR
The claimant does not have an impairment or combination
of impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.925 and 416.926).
The claimant has the residual functional capacity to perform
the full range of medium work as defined in 20 CFR 416.967(c).
The claimant has no past relevant work (20 CFR 416.965).
The claimant was born on December 25, 1983, and was a
“younger individual” as of her alleged onset date of June 1, 2006.
The claimant has at least a high school degree and is able to
communicate in English (20 CFR 416.964).
Transferability of job skills is not an issue in this case
because the claimant has no past relevant work (20 CFR 416.958).
Considering the claimant’s age, education, work experience,
and residual functional capacity, Medical-Vocations Rule 203.28
used as a framework supports a finding of “not disabled.”
Based on the application for supplemental security income protectively
filed on March 22, 2007, the claimant was not disabled under sections 1602
and 1614(a)(3)(A) of the Social Security Act through the date of the
Administrative Law Judge’s decision dated April 22, 2009.
(Id.) The foregoing decision of the Appeals Council is the final decision of the
Commissioner of Social Security before this Court for review. Compare 20 C.F.R. §
416.1481 (2011) (“The Appeals Council may deny a party’s request for review or it may
decide to review a case and make a decision. The Appeals Council’s decision, or the
decision of the administrative law judge if the request for review is denied, is binding
unless you or another party file an action in Federal district court, or the decision is
revised.”) with 20 C.F.R. §422.210(a) (“A claimant may obtain judicial review of a
decision by an administrative law judge if the Appeals Council has denied the
claimant’s request for review, or of a decision by the Appeals Council when that is the
final decision of the Commissioner.”).
In supplemental security income cases where the claimant has no past
vocationally-relevant work, as here, it is the Commissioner’s burden to prove that the
claimant is capable of performing work which exists in significant numbers in the
national economy. See Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989) (citation
omitted). The Commissioner’s articulation of specific jobs the claimant is capable of
performing must be supported by substantial evidence. Id. (citation omitted).
Substantial evidence is defined as more than a scintilla and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining
whether substantial evidence exists, we must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the [Commissioner’s] decision.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).3
In this case, the plaintiff contends that the Commissioner’s decision should be
reversed because the ALJ’s RFC assessment is not supported by substantial evidence
and because the ALJ failed in his duty to develop the record by ordering a
psychological consultative examination.
The undersigned will consider these issues together but prior to doing so it is
necessary for the Court to set forth the proper analysis for consideration of RFC
“issues” raised in cases like the instant one, given the defendant’s consistent stance in
numerous cases presently pending before this Court that in past cases this Court has
conflated the fourth and fifth steps of the sequential evaluation process with respect to
who has the burden of developing the evidence necessary to determine residual
functional capacity. (See Doc. 16, at 8-11.)
The Eleventh Circuit has made clear that “[r]esidual functional capacity, or RFC,
is a medical assessment of what the claimant can do in a work setting despite any
mental, physical or environmental limitations caused by the claimant’s impairments
and related symptoms.” Peeler v. Astrue, 400 Fed.Appx. 492, 493 n.2 (11th Cir. Oct. 15,
2010), citing 20 C.F.R. § 416.945(a). Stated somewhat differently, “[a] claimant’s RFC is
‘that which [the claimant] is still able to do despite the limitations caused by his . . .
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
impairments.’” Hanna v. Astrue, 395 Fed.Appx. 634, 635 (11th Cir. Sept. 9, 2010), quoting
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). “In making an RFC
determination, the ALJ must consider all the record evidence, including evidence of
non-severe impairments.” Hanna, supra (citation omitted); compare 20 C.F.R. §
416.945(a)(1) (“We will assess your residual functional capacity based on all the relevant
evidence in your case record.”) with 20 C.F.R. § 416.945(a)(3) (“We will assess your
residual functional capacity based on all of the relevant medical and other evidence.”).
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC, a deep-seated principle of Social Security law, see 20 C.F.R. § 416.946(c)
(“If your case is at the administrative law judge hearing level under § 416.1429 or at the
Appeals Council review level under § 416.1467, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals Council makes
a decision) is responsible for assessing your residual functional capacity.”), that this
Court has never taken issue with. See, e.g., Hunington ex rel. Hunington v. Astrue, No. CA
08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July 28, 2009) (“Residual functional
capacity is a determination made by the ALJ[.]”) (order adopting report and
recommendation of the undersigned). The regulations provide, moreover, that while a
claimant is “responsible for providing the evidence [the ALJ] . . . use[s] to make a[n]
[RFC] finding[,]” the ALJ is responsible for developing the claimant’s “complete
medical history, including arranging for a consultative examination(s) if necessary,”
and helping the claimant get medical reports from her own medical sources. 20 C.F.R. §
416.945(a)(3). In assessing RFC, the ALJ must consider any statements about what a
claimant can still do “that have been provided by medical sources,” as well as
“descriptions and observations” of a claimant’s limitations from her impairments,
“including limitations that result from  symptoms, such as pain[.]” Id.
In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in
paragraphs (b), (c), and (d) of this section.” 20 C.F.R. § 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we
first assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
and then determine your residual functional capacity for work activity on
a regular and continuing basis. A limited ability to carry out certain
mental activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting, may reduce your ability
to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s) which
impose environmental restrictions, may cause limitations and restrictions
which affect other work-related abilities. If you have this type of
impairment(s), we consider any resulting limitations and restrictions
which may reduce your ability to do past work and other work in
deciding your residual functional capacity.
20 C.F.R. § 416.945(b), (c) & (d).
Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence. Compare Figgs v.
Astrue, 2011 WL 5357907, *1 & 2 (M.D. Fla. Oct. 19, 2011) (“Plaintiff argues that the ALJ’s
residual functional capacity (‘RFC’) determination is not supported by substantial
evidence. . . . [The] ALJ’s RFC Assessment is [s]upported by substantial record
evidence[.]”), report & recommendation approved, 2011 WL 5358686 (M.D. Fla. Nov. 3,
2011), and Scott v. Astrue, 2011 WL 2469832, *5 (S.D. Ga. May 16, 2011) (“The ALJ’s RFC
Finding Is Supported by Substantial Evidence[.]”), report & recommendation adopted, 2011
WL 2461931 (S.D. Ga. Jun. 17, 2011) with Green v. Social Security Administration, 223
Fed.Appx. 915, 923 & 923-924 (11th Cir. May 2, 2007) (per curiam) (“Green argues that
without Dr. Bryant’s opinion, there is nothing in the record for the ALJ to base his RFC
conclusion that she can perform light work. . . . Once the ALJ determined that no weight
could be placed on Dr. Bryant’s opinion of  Green’s limitations, the only documentary
evidence that remained was the office visit records from Dr. Bryant and Dr. Ross that
indicated that she was managing her respiration problems well, that she had controlled
her hypertension, and that her pain could be treated with over-the-counter medication.
Thus, substantial evidence supports the ALJ’s determination that Green could perform
light work.”). And while, as explained in Green, supra, an ALJ’s RFC assessment may be
supported by substantial evidence even in the absence of an opinion by an examining
medical source about a claimant’s residual functional capacity, specifically because of
the hearing officer’s rejection of such opinion,4 223 Fed.Appx. at 923-924; see also id. at
923 (“Although a claimant may provide a statement containing a physician’s opinion of
her remaining capabilities, the ALJ will evaluate such a statement in light of the other
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those courts—
including this one—that have staked the position that the ALJ must link the RFC
assessment to specific evidence in the record bearing upon the claimant’s ability to
perform the physical, mental, sensory, and other requirements of work.5 Compare, e.g.,
An ALJ’s articulation of reasons for rejecting a treating source’s RFC assessment
must, of course, be supported by substantial evidence. Gilabert v. Commissioner of Social Security,
396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (“Where the ALJ articulated specific reasons for
failing to give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. In this case, therefore, the critical
question is whether substantial evidence supports the ALJ’s articulated reasons for rejecting
Thebaud’s RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v.
Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) (per
In Green, supra, such linkage was easily identified since the documentary
evidence remaining after the ALJ properly discredited the RFC opinion of the treating physician
“was the office visit records from Dr. Bryant and Dr. Ross that indicated that [claimant] was
managing her respiration problems well, that she had controlled her hypertension, and that her
pain could be treated with over-the-counter medication.” 223 Fed.Appx. at 923-924. Based upon
such nominal clinical findings, the court in Green found “substantial evidence support[ing] the
ALJ’s determination that Green could perform light work.” Id. at 924; see also Hovey v. Astrue,
Civil Action No. 1:09CV486-SRW, 2010 WL 5093311, at *13 (M.D. Ala. Dec. 8, 2010) (“The
Eleventh Circuit’s analysis in Green, while not controlling, is persuasive, and the court finds
plaintiff’s argument . . . that the ALJ erred by making a residual functional capacity finding
without an RFC assessment from a physician without merit. In formulating plaintiff’s RFC in
the present case, the ALJ—like the ALJ in Green—relied on the office treatment notes of
plaintiff’s medical providers.”).
Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582
(S.D. Ala. Dec. 15, 2008), in which a matter is remanded to the Commissioner because the “ALJ’s
RFC determination [was not] supported by substantial and tangible evidence” still accurately
reflect the view of this Court, but not to the extent that such decisions are interpreted to require
Saunders v. Astrue, 2012 WL 997222, *5 (M.D. Ala. Mar. 23, 2012) (“It is unclear how the
ALJ reached the conclusion that Plaintiff ‘can lift and carry up to fifty pounds
occasionally and twenty-five pounds frequently’ and sit, stand and/or walk for six
hours in an eight hour workday,  when the record does not include an evaluation of
Plaintiff’s ability to perform work activities such as sitting, standing, walking, lifting,
bending, or carrying.”) with 20 C.F.R. § 416.945(b), (c) & (d).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision. For example, in
Hanna, supra, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand
and finger movements, overhead reaching, and occasional gross and fine
that “substantial and tangible evidence” must—in all cases—include an RFC or PCE from a
physician. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination
[was] supported by substantial evidence. [That] record [did] not reveal evidence
that would support an inference that Plaintiff [could] perform the requirements
of light work, and certainly an ALJ’s RFC determination must be supported by
substantial and tangible evidence, not mere speculation regarding what the
evidence of record as a whole equates to in terms of physical abilities.
Id. (citing Cole v. Barnhart, 293 F. Supp.2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony,
is problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying
how often he could perform such tasks, it is unclear how the ALJ
concluded that Hanna could occasionally engage in all forms of hand and
finger movements, gross manipulation, and fine manipulation. . . .
The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return
to his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work.
The ALJ must state the grounds for his decision with clarity to
enable us to conduct meaningful review. The ALJ has not done so here.
To the extent the ALJ based Hanna’s RFC assessment on hearing
testimony by the ME and VE, the assessment is inconsistent with the
evidence. The ALJ did not explicitly reject any of either the ME’s or VE’s
testimony or otherwise explain these inconsistencies, the resolution of
which was material to whether Hanna could perform his past relevant
work. Absent such explanation, it is unclear whether substantial
evidence supported the ALJ’s findings; and the decision does not
provide a meaningful basis upon which we can review Hanna’s case.”
395 Fed.Appx. at 635-636 (emphasis added and internal citations and footnotes
omitted); see also Ricks v. Astrue, No. 3:10–cv–975–TEM, 2012 WL 1020428, at *9 (M.D.
Fla. Mar. 27, 2012) (“‘The existence of substantial evidence in the record favorable to the
Commissioner may not insulate the ALJ’s determination from remand when he or she
does not provide a sufficient rationale to link such evidence to the legal conclusions
reached.’ Where the district court cannot discern the basis for the Commissioner’s
decision, a sentence-four remand may be appropriate to allow him to explain the basis
for his decision.”) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th
Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”) (citation omitted).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner—using “the record as a whole”—on appeal, but rather, must be clearly
set forth in the ALJ’s decision. See, e.g., Durham v. Astrue, Civil Action No. 3:08CV839SRW, 2010 WL 3825617, at *3 (M.D. Ala. Sep. 24, 2010) (rejecting the Commissioner’s
request to affirm an ALJ’s decision because, according to the Commissioner, overall, the
decision was “adequately explained and supported by substantial evidence in the
record”; holding that affirming that decision would require that the court “ignor[e]
what the law requires of the ALJ[; t]he court ‘must reverse [the ALJ’s decision] when the
ALJ has failed to provide the reviewing court with sufficient reasoning for determining
that the proper legal analysis has been conducted’”) (quoting Hanna, 395 Fed. App’x at
636 (internal quotation marks omitted)); see also id. at *3 n.4 (“In his brief, the
Commissioner sets forth the evidence on which the ALJ could have relied . . . . There
may very well be ample reason, supported by the record, for [the ALJ’s ultimate
conclusion]. However, because the ALJ did not state his reasons, the court cannot
evaluate them for substantial evidentiary support. Here, the court does not hold that
the ALJ’s ultimate conclusion is unsupportable on the present record; the court holds
only that the ALJ did not conduct the analysis that the law requires him to conduct.”).
Finally, prior to turning full attention to the primary issue raised by claimant,
the undersigned need note that even though the plaintiff recognizes in the first few
pages of her brief that the Appeals Council entered a corrective decision (Doc. 13, at 2),
she proceeds to entirely ignore that decision in making her arguments and, instead,
focuses solely upon alleged errors made by the ALJ (see id. at 6-10). And while
plaintiff’s first assignment of error can easily be reviewed by this Court in light of the
Appeals Council’s decision, since that decision reflects the same RFC assessment, see
Rollinson v. Astrue, 2010 WL 1737690, *2 n.2 (E.D.N.C. Apr. 9, 2010) (“Throughout his
memorandum, Claimant alleges errors by the ALJ. However, as explained above, the
Appeals Council’s decision is the Commissioner’s final decision and is accordingly the
decision before this Court for judicial review.”), report & recommendation adopted, 2010
WL 1737644 (E.D.N.C. Apr. 29, 2010), the same cannot be said of plaintiff’s second
assignment of error. Indeed, in arguing that the ALJ failed to develop the record by not
ordering a consultative psychological examination plaintiff stressed that the ALJ noted
that her depression was severe when considered in combination with her other
impairments. (See Doc. 13, at 8-9.) As set forth above, however, the decision before this
Court for review is the Appeals Council’s decision and the plaintiff nowhere in her
brief—and having waived oral argument—takes issue with the finding by the Appeals
Council that she has no severe medically determinable mental impairment (see Tr. 5);
therefore, this Court need reject any suggestion that the ALJ erred in failing to order a
consultative psychological examination. Cf. Beattie v. Astrue, 2009 WL 4510117, *6 (M.D.
Fla. Dec. 1, 2009) (“The Commissioner’s duty to develop the record includes ordering a
consultative examination if one is needed to make an informed decision. As discussed
above, the evidence in this case failed to establish that Plaintiff had a severe mental
impairment. Because the record was sufficient for the ALJ to make an informed
decision, there was no need for the ALJ to order a consultative psychological
examination.” (internal footnote omitted).)6
Turning to plaintiff’s lead issue (see Doc. 13, at 6-8), the Court considers whether
the Commissioner’s decision denying benefits should be reversed on the basis that the
RFC assessment is not supported by substantial evidence. Johnson more specifically
argues that “Dr. West’s assertion that he ‘really see[s] no disabling factors,’ cannot be
substituted for an appropriate physical capacity evaluation[,]” (Doc. 13, at 6) and
because the Commissioner’s “RFC assessment is unsupported by the evaluation of a
treating or examining physician[,]” a remand is warranted for “further development of
the record on which to base an appropriate RFC finding.” (Id. at 8.) Based upon the
previous legal analysis set forth above, the Court need reject plaintiff’s argument that
the Commissioner cannot render an RFC that is not supported by the medical opinion
of a treating or examining medical source. Through its decision in Green, supra, the
Eleventh Circuit has expressly rejected this argument. See 223 Fed.Appx. at 923-924.
To the extent necessary, the undersigned finds that the Appeals Council, having
found no severe mental impairment, was under no duty to order a consultative psychological
examination. See Beattie, supra.
Indeed, the Eleventh Circuit indicated in Green that where an ALJ and/or Appeals
Council articulates specific reasons, supported by substantial evidence, for failing to
give the RFC opinion of a treating physician controlling weight, and the Commissioner
properly links the remaining evidence of record (after such rejection) to the RFC
assessment, such assessment can be found to be supported by substantial evidence. See
Because there was no rejection of a treating physician’s RFC assessment in this
case, the undersigned need only consider whether the Appeals Council linked the RFC
assessment in this case to specific evidence in the record bearing upon the claimant’s
ability to perform the physical, mental, sensory, and other requirements of work. The
following analysis by the Appeals Council provides the required linkage:
[A]lthough the decision on its face does not appear to provide a “function
by function” assessment of claimant’s residual functional capacity, by
finding that she could perform the full range of medium work and citing
20 CFR 416.967(c), which clearly defines that term, the Administrative
Law Judge satisfied the requirements of Social Security Ruling 96-8p.
Furthermore, the evidence of record does not support limitations greater
than those found by the Administrative Law Judge. While the record
shows that claimant has sought medical treatment for a variety of health
issues, clinical findings have generally been unremarkable (Exhibit 1F, 8F,
10F). As noted above, the record does not establish that claimant has a
medically determinable mental impairment. In terms of her flat feet, the
current record does not show that claimant was ever seen by a podiatrist.
The only record regarding this alleged impairment is from Stephen West,
M.D., a consultative examiner who evaluated claimant in August 2007 and
stated that she had 5/5 strength, good range of motion, negative straight
leg raise tests, could do heel toe maneuvers, fully squat and walk with a
normal gait (Exhibit 3F). Based on his examination, Dr. West indicated
that he did not see any “disabling factors” and did not recommend any
functional limitations despite finding planter (sic) fasciitis bilaterally,
hypertension and migraine headaches (Exhibit 3F/2). Finally, while the
evidence reflects that claimant has sought treatment for abdominal pain,
has been prescribed medications to treat nausea and acid reflux, and has
been found to have irritable bowel syndrome, they do not show that
claimant has significant limitations as a result of these conditions (Exhibit
(Tr. 5-6.) As the foregoing summary by the Appeals Council establishes, this case is very
similar to Green in that the documentary evidence of record consists of nominal, indeed
unremarkable, clinical findings. (Compare Tr. 5-6 with Tr. 169-170, 179-231, & 259-373.)
At best, the evidence establishes flat feet bilaterally (causing plantar fasciitis) but
plantar flexion and dorsiflexion bilaterally is 5/5 and gait is normal (Tr. 170); recurrent
bouts of irritable bowel syndrome which respond fully to medications (Tr. 180-200, 213,
219-227, 287-291 & 332-352); some chiropractic treatment for cervical and low back
complaints (Tr. 232-258) without significant clinical findings (compare Tr. 232 (cervical xrays unremarkable) with Tr. 238-239); and, as of the March 12, 2009 hearing date,
plaintiff experiences no significant physical pain on a regular basis (Tr. 33-34).7 The RFC
assessment that plaintiff can perform the full range of medium work,8 including those
medium jobs identified by the vocational expert during the hearing (see Tr. 6-7; compare
Plaintiff’s argument that the Commissioner’s RFC assessment fails to adequately
consider the limitations caused by her irritable bowel syndrome and back pain (Doc. 13, at 8), is
belied by the decision of the Appeals Council, which correctly references the chiropractic
treatment records as reflecting unremarkable clinical findings (compare Tr. 5-6 (citing Exhibit 8F)
with Tr. 232-258 (transcript pages comprising Exhibit 8F)) and notes, also correctly, that the
evidence of record regarding plaintiff’s irritable bowel syndrome reflects no “significant
limitations as a result” of that condition (Tr. 6). This argument is also undercut by plaintiff’s
hearing testimony that, as of the hearing date, she was having no significant physical pain on a
regular basis. (Tr. 33-34.)
“Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
id. with Tr. 40), is, contrary to plaintiff’s position, supported by substantial evidence.
Accordingly, the Commissioner’s fifth-step denial of benefits is due to be affirmed.
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be affirmed.
DONE and ORDERED this the 18th day of April, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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