Reed v. Astrue

Filing 24

Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income is REVERSED and REMANDED.. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CLAUDIA M. REED,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CIVIL ACTION 11-00376-B

ORDER
Plaintiff Claudia M. Reed (“Plaintiff”) brings this action
seeking judicial review of a final decision of the Commissioner
of Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et. seq.,

and

1381, et. seq.

On April 24,

2012,

the

parties consented to have the undersigned conduct any and all
proceedings

in

this

case;

and

as

a

result,

this

action

was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c).
(Docs. 22, 23).
careful

Oral argument was held on April 24, 2012.

consideration

of

the

administrative

record,

Upon
the

memoranda of the parties, and the representations of counsel at

oral argument, it is hereby ORDERED that the decision of the
Commissioner be REVERSED and REMANDED.
I.

Procedural History
Plaintiff protectively filed applications for a period of

disability,
security

disability

income

on

insurance

May

14,

benefits,

2009.

(Tr.

and

supplemental

131-37).

Plaintiff

alleges that she has been disabled since May 9, 2009, due to a
heart condition and depression.

(Id. at 131, 151, 183).

Her

application was denied at the initial stage (id. at 78-82), and
she filed a timely Request for Hearing before an Administrative
Law

Judge

(“ALJ”).

(Id.

at

Administrative

Law

Judge

hearing,

was

attended

which

83-84).

Linda
by

vocational expert Jody Skinner.
2010,

the

ALJ

issued

an

Plaintiff is not disabled.

Helm

On

November

22,

2010,

held

an

administrative

Plaintiff,

her

attorney,

(Tr. 32-63).

unfavorable

decision

(Id. at 13-31).

and

On December 9,
finding

that

Plaintiff’s request

for review was denied by the Appeals Council (“AC”) on May 27,
2011.

(Id. at 1-4, 9-12).

The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C. §
405(g) and 1383(c)(3).
II.

Issues on Appeal
A.

Whether the ALJ erred by improperly evaluating
the opinions of Plaintiff’s treating physicians,
Dr. Hardy and Dr. Sharpe?
2

B.

Whether the ALJ erred by failing to order a
consultative cardiac examination?

C.

Whether the ALJ erred in finding that Plaintiff
retained the RFC to perform light work?

III. Factual Background
Plaintiff was born on March 1, 1976, and was 34 years old
at the time of the administrative hearing.

(Tr. 37, 64, 66).

She earned her GED and has worked in the past as a day care
worker, fast food worker, and cashier/checker.
42, 152, 176, 201).

(Id. at 25, 38,

Plaintiff reported that she stopped working

due to chest pains, numbness in her hands, and swelling.
at 151).

(Id.

Plaintiff also reported that since she experienced a

heart attack, she “stay[s] out of breath all the time”, and that
she experiences shortness of breath and tightness in her chest
when walking short distances or standing for thirty minutes.
(Id. at 44-49).
problems sitting.

Plaintiff indicated that she does not have any
(Id. at 49).

Plaintiff also testified that

she is not receiving any treatment for her alleged depression.
(Id. at 47).
According to Plaintiff, she is able to drive, clean her
house, take care of her two children, aged 15 years and 16
months, and handle her finances.

(Id. at 51-52).

Plaintiff

testified that she stays home a lot because it is a big job for
her to lift her baby in and out of his car seat.

3

(Id.).

IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).1

Martin v. Sullivan, 894 F.2d

A court

may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court 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

1

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
4

(11th Cir. 1986); Short v. Apfel, 1999 U.S.

Dist. LEXIS 10163

(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

416.912.
substantial

prove

his

disability.

20

C.F.R.

§

404.1512,

Disability is defined as the “inability to do any
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 months.”
42 U.S.C. § 423(d)(1)(A), 404.1505(a), 416.905(a).

The Social

Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven her disability.
20 C.F.R. § 404.1520, 416.920.2

2

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments.
If, at the third
step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant’s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner’s burden to prove
(Continued)
5

In the case sub judice, the ALJ determined that Plaintiff
met

the

non-disability

requirements

benefits through December 31, 2013.

for

disability

(Tr. 18).

insurance

The ALJ found

that Plaintiff has not engaged in substantial gainful activity
since

her

alleged

onset

date

and

that

she

has

the

severe

impairments of coronary artery disease, ischemic cardiomyopathy,
chronic obstructive pulmonary disease, and asthmatic bronchitis.
(Id.).

The ALJ found that Plaintiff does not have an impairment

or combination of impairments that meets or medically equals any
of the listings

contained in 20 C.F.R. Pt. 404, Subpt. P, App.

1, Regulations No. 4.
The

ALJ

(Id. at 19).

concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform less than a
full range of light work, that Plaintiff can stand/walk for no
more than thirty minutes at a time and for no more than two
hours in an eight-hour workday, that she can sit for six hours

at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

6

in an eight-hour workday, and that she can lift/carry up to
twenty pounds occasionally and ten pounds frequently. The ALJ
found that Plaintiff is unable to climb ladders, scaffolds, or
ropes, that she cannot work at unprotected heights or around
dangerous equipment, that she is unable to work in temperature
extremes or humidity and wetness, and that she cannot tolerate
exposure to concentrated environmental pollutants.

(Id. at 20).

The ALJ next determined that Plaintiff has some credible
limitations resulting from the shortness of breath and other
symptoms related to her respiratory and cardiac impairments, but
her statements concerning her impairments and their impact on
her ability to work are considerably more limited and restricted
than is established by the record as a whole. (Id. at 22-23).
The

ALJ

concluded

that

Plaintiff’s

RFC

precludes

her

from

performing any of her past relevant work and that, considering
Plaintiff’s RFC and vocational factors, such as age, education
and work experience, Plaintiff is able to perform other jobs
existing in significant numbers in the national economy.
at

25-26).

disabled.

Thus,

the

ALJ

concluded

that

Plaintiff

is

(Id.
not

(Id. at 26-27).

The relevant evidence of record reflects that Plaintiff was
admitted to Providence Hospital on May 9, 2009, with burning in

7

her chest that radiated up into her neck, and dyspnea.3
203).

On

evidence

initial

of

exam

non-Q

and

wave

subsequently admitted.

laboratory

myocardial

workup,

she

infarction

(Id. at 206-07).

(Tr.
showed

and

was

Plaintiff underwent

balloon angioplasty of the left anterior descending, and due to
severe

diffuse

placement
Plaintiff

of
was

disease
four

from

Cypher

provided

angiotensin-converting

the

midpoint

stents

without

aspirin,

enzyme

on,

she

underwent

residual

stenosis.

Plavix,

inhibitors,

beta
and

blockers,

statins.

At

discharge, Plaintiff was diagnosed with non-ST segment elevation
myocardial infarction secondary to mid occlusion in the left
anterior descending artery; four cypher stents to the mid and
distal left anterior descending artery; ischemic cardiomyopathy,
ejection fraction of 35%; status post vaginal delivery two weeks
prior; and tobacco use. She was directed to follow up with Dr.
Dale Hardy’s office in two weeks.

(Id. at 203-04).

The record includes treatment notes from W. Dale Hardy,
M.D. (hereinafter “Dr. Hardy”) at Mobile Heart Specialists from
June 16, 2009 through March 16, 2010.
288).

(Id. at 240-77; 286;

After her initial inpatient treatment for non-ST segment

3

Dyspnea is most frequently described as shortness of
breath, inability to take a deep breath, or chest tightness.
See http://www.ncbi.nlm.nih.gov/pubmed/21250198 (last visited
September 28, 2012).

8

elevation myocardial infarction, Plaintiff followed up with Dr.
Hardy on June 16, 2009.
made

her

feel

Plaintiff reported that her medications

“crazy,”,

that

she

has

some

numbness

in

her

fingers, that she has some shortness of breath and that she was
easily fatigued.

(Id. at 244-45).

Plaintiff also reported that

she has not smoked since her heart attack.

(Id.).

Dr. Hardy

explained that fatigue and “feeling crazy” are not side effects
of

aspirin

or

Plavix.

So

he

advised

discontinue the use of those medications.
further

explained

Pravastatin

Plaintiff’s

Lisinopril,

or

that

and

Plaintiff

(Id. at 245).

symptoms

directed

not

could

her

to

come

stop

to
He
from

taking

Lisinopril for a week to see if her symptoms resolved and if
they did not, to restart the Lisinopril and repeat the process
by stopping the Pravastatin.

(Id.).

The July 17, 2009 treatment notes reflect that Plaintiff
reported that she was feeling better, that she did not stop any
of her medicines and that all of her symptoms resolved.

She

also reported some burning and tingling in her chest but denied
any

actual

shortness

of

chest

pain

breath,

or

pressure,

palpitations,

or

exertional
syncope.

symptoms,
Dr.

Hardy

observed that Plaintiff had some mild transaminase elevation in
her

lab

work.

Plaintiff

was

directed

pravastatin, lisinopril, aspirin, and Plavix.

9

to

continue

with

(Id. at 241-42).

On September 10, 2009, Plaintiff presented to the Emergency
Room at Providence Hospital complaining of chest pain.
247-65).
normal

(Id. at

An x-ray of Plaintiff’s chest was taken and revealed

heart

with

clear

lung

functions.

(Id.

at

258).

A

nuclear stress test with angina was performed and showed a large
severe predominately fixed defect in the mid to distal anterior
and anterior septal, apical and distal inferior walls consistent
with

transmural

systolic

scar

function

and

with

mildly

regional

ejection fraction of 40%.

depressed

motion

left

ventricular

abnormalities

with

an

(Id. at 255).

On exam, Plaintiff had an abnormal heart rhythm, which was
determined

to

be

artifact

and

not

ventricular

tachycardia.

Plaintiff’s labwork, including cardiac markers, were negative
for injury, and her brain natriuretic peptide4, amylase, and
lipase

tests

were

all

normal.

Plaintiff’s

serum

glutamic-

oxaloacetic transminase and serum glutamic-pyruvic levels were
mildly elevated.

The notes also reflect that Plaintiff was

continuing to smoke.
acid

reflux,

and

she

The burning in her chest was diagnosed as
was

directed

4

to

take

over-the-counter

A brain natriuretic peptide (BNP) test measures the amount
of the BNP hormone in your blood. BNP is made by your heart and
shows how well your heart is working. See http://www.webmd.com
/heart-disease/brain-natriuretic-peptide-bnp-test (last visited
September 28, 2012).

10

Prilosec for at least 2 to 3 weeks.
the following day.

Plaintiff was discharged

(Id. at 248).

Phillip W. Lambert, a single decision-maker (“SDM”) with
the Agency, completed a physical RFC assessment dated October
27, 2009.

Mr. Lambert assessed Plaintiff with coronary artery

disease, ischemic cardiomyopathy, ejection fraction equals 40%,
and fatigue.

He opined that Plaintiff could occasionally and

frequently lift 10 pounds, stand and/or walk about 2 hours in an
8-hour workday, sit about 6 hours in an 8-hour workday, and push
and/or pull for an unlimited amount of time.
Lambert

opined

manipulative,

that

visual,

Plaintiff
or

has

communicative

no

Additionally, Mr.
limitations

ranges,

that

she

in
can

occasionally climb ramps/stairs, and that she can never climb
ladder/rope/scaffolds.
avoid

concentrated

He

exposure

also
to

opined
extreme

that

Plaintiff

heat,

extreme

should
cold,

fumes, odors, dusts, gases, and poor ventilation as well as all
exposure to hazards such as machinery and heights.

(Id. at 68-

75).
The record includes a letter written by Dr. Hardy and dated
December 10, 2009.

In it, Dr. Hardy notes that he has treated

Plaintiff since her heart attack, and that aside from the chest
pain she experienced in September 2009, which was attributed to
acid reflux, she has not reported any chest pain.

Dr. Hardy

indicates that Plaintiff has a decrease in her left ventricular
11

function but no symptoms of heart failure, and that Plaintiff’s
right distal coronary artery has a lesion, which is relatively
severe, but is in a small vessel and is medically treatable.

He

further notes that in Plaintiff’s July 17, 2009 office visit,
she was not symptomatic from a cardiac standpoint.

He observed

that she “probably does have some decrease in her functional
capacity from her reduction in her left ventricular function at
35-40%, which is documented on several cardiac studies.
being

considered

for

disability,

she

may

require

a

If

formal

disability evaluation, which we are unable to provide at this
point.”

(Id. at 270).

Dr. Hardy’s treatment notes dated January 12, 2010 reflect
that Plaintiff reported shortness of breath and fatigue.

She

also reported dyspnea on exertion with moderate activity and
that she “just gives out.”

She denied paroxysmal nocturnal

dyspnea5, orthopnea, palpitations, or syncope.

In the notes, Dr.

Hardy states that Plaintiff had these symptoms on her last visit
and was scheduled for an x-ray and a brain natriuretic peptide
(BNP) test; however, due to transportation issues, she did not
have the tests.

On exam, Plaintiff was well-developed and well-

5

Paroxysmal nocturnal dyspnea, or “PND,” is a sensation of
shortness of breath that awakens the patient, often after one or
two hours of sleep, and is usually relieved in the upright
position.
See http://www.ncbi.nlm.nih.gov/books/NBK213/ (last
visited September 28, 2012).

12

nourished

in

no

acute

According

to

the

distress.

notes,

Her

Plaintiff

lungs

were

questioned

clear.

whether

her

“shortness of breath with exertion” was the result of being out
of shape or overweight given that she weighted 164 pounds in
July 2009 and was now weighing 186 lbs. Dr. Hardy opined her
weight gain was probably attributed to the fact that she had
stopped smoking. She was again directed to have an x-ray and BNP
test performed, and the records reflect that she did so.

(Id.

at 266-67; 274-75).
During Plaintiff’s March 16, 2010 office visit, she again
reported shortness of breath, but denied any chest pain.

Dr.

Hardy noted that the chest x-ray and BNP tests were normal and
showed no evidence of heart failure, that Plaintiff’s pulmonary
vascularity was normal, and that her lungs were clear of acute
infiltrates.

Additionally, Plaintiff’s cardiac silhouette was

normal in size.

Dr. Hardy decided to continue Plaintiff on

Plavix although she would have normally come off of it in May
2010,

which

is

one

year

from

her

surgery.

He

opined

that

Plaintiff was being provided Plavix at no charge, and it was
reasonable

to

continue

multiple stents.
Dr.

Hardy’s

her

on

it

considering

that

she

has

(Id. at 271-72).
treatment

notes

dated

September

28,

2010

reflect that Plaintiff reported that she was no longer taking
her beta-blocker, ace-inhibitor, and statin because they were
13

making

her

sick.

Specifically,

Plaintiff

stated

that

her

medications were making her forgetful and that she felt better
after

she

reported

ceased

that

taking

her

them.

breathing

She

has

denied

gotten

chest

significantly

since she started exercising on a regular basis.
noted

that

visit.

Plaintiff’s

weight

was

pain

unchanged

and

better

Dr. Hardy

since

her

last

He discontinued Plavix since her heart attack was over a

year ago, but instructed her to continue to take an aspirin a
day.

He also informed Plaintiff that forgetfulness is not a

typical side effect of Lisinopril, Lopressor, or Pravastatin,
and he recommended that Plaintiff start taking the medicines
again, one at a time, at one to two week periods, to see if her
symptoms reoccur.
medications

in

the

He explained to her the benefits of these
reduction

of

directed to follow up in six months.

cardiac

events.

She

was

(Id. at 286, 288).

Plaintiff was treated by Thomasina Sharpe, MD (hereinafter
“Dr. Sharpe”) at the Mobile County Health Department on April
19, June 7, and October 13, 2010.
notes

dated

April

19,

2010

(Id. at 278-87).

reflect

that

Plaintiff

shortness of breath with exertion, but not at night.

Treatment
reported
Plaintiff

also reported that she used a relative’s inhaler, which improved
her

shortness

discomfort,

of

breath.

congestion,

or

She

reported

palpitations.

no
On

chest

exam,

pain,

she

had

normal heart rate, rhythm and heart sounds, and no murmurs or
14

edema

were

noted.

Plaintiff

was

assessed

with

chronic

obstructive pulmonary disease and provided Ventolin HFA CFC free
90 mcg/inh inhaler, Flovent HFA CFC free 110 mcg/inh inhaler,
and Albuterol PRN.
During

without

June

7,

2010

continued

Plaintiff

a

(Id. at 281-83).

to

report

that

she

exertion,

office

visit

shortness
was

taking

with

of

Dr.

breath
multiple

Sharpe,
with

or

cardiac

medications, and that she forgets to take her medications often.
On exam, Plaintiff appeared in acute distress.

Plaintiff was

informed that she was not a good candidate for birth control.
(Id. at 278-80, 284-85).
Dr. Sharpe’s treatment notes dated October 14, 2010 reflect
that Plaintiff reported shoulder and neck pain lasting a week.
She also reported that she felt like she had “slept wrong.”
exam, Plaintiff was in no acute distress.

On

Respiration rhythm

and depth were normal, and no wheezing or rales/crackles were
heard.
and

Spasm over Plaintiff’s trapezius muscle was observed,

Plaintiff

shoulders.

had

full

range

of

motion,

with

pain,

in

the

Plaintiff was educated about pain management, and

she was prescribed Naprosyn 500 mg and Flexeril 10 mg.

(Id. at

289-92).
The record includes a letter from Dr. Sharpe, dated October
14, 2010, and addressed to “whom it may concern.”
letter,

Dr.

Sharpe

advised

that:
15

“[Plaintiff]

has

In the
Coronary

Artery Disease and earlier this year she suffered a Myocardial
infarction and had stents placed in her coronary arteries. She
also

suffers

from

Chronic

Asthmatic Bronchitis.”

Obstructive

Pulmonary

Disease

and

(Id. at 287).

Whether the ALJ erred by failing to order a
consultative cardiac examination.
Plaintiff argues that the ALJ erred by failing to order a
consultative

cardiac

limitations

resulting

include

coronary

exam

to

from

artery

determine
her

disease

cardiac
and

the

severity

of

impairments,

ischemic

and

which

cardiomyopathy.

Specifically, Plaintiff notes that Dr. Hardy’s opinion indicated
Plaintiff needed a formal disability evaluation.

(Doc. 13).

The Commissioner responds that the ALJ considered the medical
opinions in the record and is permitted to issue a decision
without obtaining additional evidence so long as the record as a
whole provides a sufficient basis to make an informed disability
decision.

(Doc. 20).

It is well established that a hearing before an ALJ in
social security cases is inquisitorial and not adversarial.
claimant

bears

the

burden

of

proving

disability

and

A
for

producing evidence in support of his claim while the ALJ has “a
basic duty to develop a full and fair record.”

Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see
also Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253,

16

1269 (11th Cir. 2007).

This duty to develop the record exists

even when the claimant is represented by counsel.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995).

Brown v.

Indeed, applicable

Social Security regulations provide that the Commissioner will
pay the reasonable cost of providing existing medical records
the Commissioner needs or requests.

Hargove v. Astrue, 2012

U.S. Dist. LEXIS 69821, *31 (N.D. Fla. Mar. 15, 2012).

The

ALJ’s duty to develop the record is triggered when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

Strawder v. Astrue, 2011

U.S. Dist. LEXIS 122843, *20 (N.D. Fla. Aug. 8, 2011).
The responsibility for determining a plaintiff’s RFC6 lies
with the ALJ and is based on all of the evidence of record.

See

Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (ALJ
has duty to assess the residual functional capacity on the basis
of all the relevant credible evidence of record); 20 C.F.R. §§
404.1546, 416.946

(responsibility for determining a claimant’s

residual functional capacity lies with the ALJ).

See also Foxx

v. Astrue, 2009 U.S. Dist. LEXIS 80307, *17 (S.D. Ala. August

6

“Residual 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. 20 C.F.R. §
416.945(a).”
Peeler v. Astrue, 400 Fed. Appx. 492, 494 n.2
(11th Cir. 2010).

17

27,

2009)(“The

RFC

assessment

must

be

based

on

all

of

the

relevant evidence in the case such as: medical history, medical
signs and laboratory findings, the effects of treatment, reports
of daily activities, lay evidence, recorded observations, and
medical source statements.”), citing

SSR 96-8p, 1996 SSR LEXIS

5.
In Siverio v. Commissioner, 461 Fed. Appx. 869, 871 (llth
Cir. 2012), a panel of the Eleventh Circuit recently discussed
the ALJ’s duty with respect to the RFC assessment, and held that
the ALJ erred when he treated, as a medical opinion, the RFC
assessment prepared by a single decision maker.

The court held

that the error was not harmless because the remaining evidence
did

not

provide

substantial

evidence

that

the

plaintiff

was

capable of performing “medium work”.
In the instant case, the ALJ, in discussing Plaintiff’s
functional limitations, and the records of Plaintiff’s treating
physicians, stated as follows:
As for the opinion evidence, Dr. Hardy and
Dr. Sharpe submitted letters concerning the
claimant’s impairments; however, they did
not offer an opinion as to the claimant’s
specific limitations resulting from the
impairments. Dr. Sharpe noted the claimant’s
diagnoses, but did not offer an opinion
regarding
the
claimant’s
limitations
(Exhibit 10F). Dr. Hardy noted that the
claimant’s cardiac condition is stable, but
“She probably does have some decrease in her
functional capacity” because of the cardiac
impairments (Exhibit 6F). This opinion,
18

although vague, is consistent with the
record as a whole and is given some weight.
Consequently, I have provided for a decrease
in the claimant’s functional capacity as a
result of the severe impairments.
There are no medical opinions in the record
that
contradict
the
stated
residual
functional capacity.
(Tr. 25).
The undersigned finds that substantial evidence does not
support the ALJ’s RFC assessment.

First of all, while neither

of Plaintiff’s treating physicians offered an opinion regarding
any functional limitations,

Dr. Hardy did not simply state that

Plaintiff probably does have some decrease in her functional
capacity because of her cardiac impairments, as stated in the
ALJ’s

opinion.

Instead,

he

noted

that

the

reduction

in

Plaintiff’s left ventricular function at 35-40% is documented on
several cardiac studies, and that if she was being considered
for disability, she may require a formal disability evaluation.
(Tr.

at

270).

Secondly,

the

ALJ

opted

not

to

have

a

consultative evaluation although the only functional assessment
in

the

case

was

rendered

by

Phillip

Lambert,

who

Commissioner acknowledges is a single decision maker7
7

the

and as

Notably, the RFC developed by the ALJ closely resembles
the functional assessment completed by Mr. Lambert except that
Mr. Lambert opined that Plaintiff is limited to lifting and
carrying 10 pounds, whereas the ALJ found that Plaintiff can
lift and carry 20 pounds.

19

such,

does

not

qualify

as

a

medical

expert.

Interestingly

however, in his assessment, Mr. Lambert opined that Plaintiff is
limited to lifting and carrying 10 pounds.

Third, the ALJ’s

finding that Plaintiff can lift and carry 20 pounds occasionally
and

10

pounds

evidence.

frequently

is

not

supported

by

substantial

In finding that Plaintiff can lift 20 pounds, the ALJ

noted that Plaintiff testified that she does not leave home a
lot because she has difficulty lifting her then 16 month old son
in and out of his car seat, that according to the Center for
Disease Control and Prevention, the weight for a 16 month old
boy in the 50th percentile is twenty-five pounds, that Plaintiff
attributed her lifting difficulties to shoulder problems that
are expected to resolve within twelve months, and because she
cares for the child independently, she can lift and carry up to
twenty

pounds

occasionally.

The

undersigned

finds

that

ALJ’s finding is not supported by substantial evidence.

the

There

is no evidence regarding the expected duration of Plaintiff’s
shoulder problem, and the fact that she is able to care for the
child

independently

strength.

does

not

establish

Plaintiff’s

lifting

This is particularly true given Plaintiff’s coronary

disease, her complaints of shortness of breath, her testimony
that she rarely leaves home due to difficulties lifting the
child in and out of the car seat and her physician’s opinion
that she probably has some decrease in her functional capacity
20

due to her coronary disease.

Because substantial evidence does

not support the RFC finding, this case must be reversed and
remanded for reconsideration of Plaintiff’s RFC.8
V.

Conclusion

For the reasons set forth, and upon careful consideration
of

the

administrative

arguments
decision

at
of

Plaintiff’s

oral
the
claim

record,

argument,

it

Commissioner
for

a

memoranda
is
of

period

of

hereby
Social

of

the

parties

ORDERED

that

Security,

disability,

and
the

denying

disability

insurance benefits, and supplemental security income is REVERSED
and REMANDED.
DONE this 28th day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

8

Because the Court determines that the decision of the
Commissioner should be reversed and remanded for further
proceedings based on the Plaintiff’s second claim, there is no
need for the Court to address Plaintiff’s other claims.
See
Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 and n.2 (S.D.
Ala. 2001); Pendley v. Heckler, 767 F.2d 1561, 1563 (llth Cir.
1985)(“Because the ‘misuse of the expert testimony alone
warrants reversal’ we do not consider the appellant’s other
claims.”) (citations omitted).
21