Stone v. Astrue
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying the plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 8/10/2012. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL J. STONE, Sr.,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
The plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her application for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”).
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.
(See Doc. 18 (“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, including . . . order the entry of a final judgment, and conduct
all post-judgment proceedings.”); see also Doc. 19, order referring case.)
consideration of the administrative record (“R.”) (Doc. 12), the plaintiff’s brief (Doc. 13),
the Commissioner’s brief (Doc. 16), and the parties’ presentations during oral argument
on June 20, 2012, it is determined that the Commissioner’s decision denying the plaintiff
benefits should be reversed and remanded for further proceedings not inconsistent
with this decision.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 15 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
On October 22, 2008, the plaintiff filed an application for DIB and SSI (R. 97-109),
alleging disability beginning November 30, 2007.
on March 18, 2009.
(See R. 48-49.)
His application was initially denied
A hearing was then conducted before an
Administrative Law Judge on April 28, 2010 (see R. 31-47).
On May 19, 2010, the ALJ
issued a decision finding that the claimant was not disabled (R. 13-30), and the plaintiff
sought review from the Appeals Council (see R. 7-12).
The Appeals Council issued its
decision declining to review the ALJ’s determination on August 5, 2011 (see R.
1-6)—making the ALJ’s determination the Commissioner’s final decision for purposes
of judicial review, see 20 C.F.R. § 404.981—and a complaint was filed in this Court on
September 9, 2011 (see Doc. 1).
Standard of Review and Claim on Appeal
In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work.
(11th Cir. 1986).
Jones v. Bowen, 810 F.2d 1001, 1005
In evaluating whether the plaintiff 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; and (4) the
plaintiff’s age, education, and work history.
Once the plaintiff meets this burden,
it becomes the Commissioner’s burden to prove that the plaintiff is capable—given his
or her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy.
Sryock v. Heckler, 764 F.2d
this judicial circuit in the same manner as an appeal from any other judgment of this district
834, 836 (11th Cir. 1985).
Although at the fourth step “the [plaintiff] bears the burden
of demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny
plaintiff benefits is supported by substantial evidence.
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, 401
“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
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Courts are precluded, however, from “deciding the facts anew or re-weighing the
Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per
curiam) (citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
And, “[e]ven if
the evidence preponderates against the Commissioner’s findings, [a court] must affirm
if the decision reached is supported by substantial evidence.”
Id. (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the plaintiff asserts a single claim: that the ALJ
committed reversible error in adopting the conclusions of a
non-acceptable state agency non-medical source, under Social Security
Regulations 20 CFR §§ 404.1513, 404.1527(d), 416.913 and 416.927(d), to
provide substantial evidence establishing a maximum residual functional
capacity for less than a full range of light work, therefore finding Plaintiff
can perform jobs that exist in significant numbers in the national
(Doc. 13 (citing R. 20-24).)
The ALJ determined that, except for certain additional restrictions, set forth in
the RFC assessment, the plaintiff “has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b)[.]”
In making this
determination, the ALJ relied on a “Physical Residual Functional Capacity Assessment”
(R. 273-280), dated March 18, 2009, rendered by Single Decision Maker (“SDM”) Sheila
Brody (see R. 280 (identifying Brody as an SDM)).2
As to his reliance on the opinion of
Ms. Brody (referred to below as the State agency medical examiner), the ALJ’s decision
On March 18, 2009, the State agency medical examiner opined that the
claimant can lift up to twenty pounds occasionally and ten pounds
frequently (Exhibit B8F, page 2). She opined that the claimant can stand
or walk for six hours in an eight hour work day and can sit for six hours in
an eight hour work day (Exhibit B8, page 2). She opined that the
claimant can occasionally climb, balance, stoop, kneel, crouch, and crawl
(Exhibit B8F, page 3). The opinion of the State agency medical examiner
was given great weight because it is consistent with the longitudinal
medical evidence of record in that the only restriction found within the
evidence limits the claimant to light duty (All Exhibits). Moreover, the
State agency examiner’s restrictions are consistent with some of the
claimant’s reports of his activities of daily living.
(R. 22; see also Doc. 13 at 4-5 (emphasis added).)
The Commissioner concedes that “Ms. Brody is not a medical source and her
conclusions were not entitled to any weight” (Doc. 16 at 5 (citing 20 C.F.R. § 404.906)
The Commissioner, through his brief, informs the Court that the Administration
“is testing several disability process initiatives to improve the disability determination process”
and that “Alabama is one of the test states for the [SDM] model,” under which “an SDM makes
a disability determination at the initial determination stage after consulting with medical or
psychological experts.” (Doc. 16 at 5 n.4 (citations omitted).) See also 20 C.F.R. § 404.906(a),
(emphasis added), 3 but contends that, “to any extent that the ALJ relied upon Ms.
Brody’s assessment, any error was harmless because the ALJ articulated several other
factors which independently supported his findings” (id. at 6).
The plaintiff’s position,
on the other hand, appears to be that any reliance by the ALJ on Ms. Brody’s opinion
(See Doc. 13 at 5 (“The [ALJ] committed reversible error in
adopting the conclusions of a non-acceptable state agency source under [SSR] 20 CFR §§
416.913 and 416.927(d) to provide substantial evidence to support a finding that
Plaintiff is not disabled.”).)
As more fully discussed below, the Court agrees with the Commissioner in
If the ALJ’s RFC is otherwise supported by substantial evidence, any
reliance on a source entitled to no weight may be harmless error, and, if so, the Court
will affirm the Commissioner’s decision.
But the Court must first, necessarily,
consider the standard for evaluating whether an ALJ’s RFC assessment is supported by
substantial evidence, which is: whether an ALJ’s decision—not the Commissioner’s
appellate brief—provides the necessary linkage between the RFC assessment and
The Eleventh Circuit, in an unpublished decision, has recently remarked on
In Florida, [an SDM] is assigned to make the initial disability determination after
“appropriate consultation with a medical or psychological consultant.” See 20
C.F.R. § 404.906(b)(2). But the “SDM” designation connotes no medical
credentials. See id. § 404.906(a), (b)(2). Indeed, the SSA’s Program Operations
Manual System (“POMS”)[—which “does not have the force of law, [but] can be
persuasive[,]” Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003)—]explicitly
distinguishes RFC assessments produced by an SDM from those produced by a
medical consultant, and states that “SDM-completed forms are not opinion
evidence at the appeals level.” POMS § DI 24510.050, available at https://
secure. ssa. gov/ apps 10/ poms. nsf/ lnx/ 0424510050.
Siverio v. Commissioner of Soc. Sec., 461 Fed. App’x 869, 872 n.3 (11th Cir. Feb. 23, 2012) (per
specific evidence in the record bearing upon the plaintiff’s ability to perform the
physical, mental, sensory, and other requirements of work.
The Commissioner’s RFC Assessment.
“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.”
Astrue, 400 Fed. App’x 492, 493 n.2 (11th Cir. Oct. 15, 2010) (per curiam) (citing 20 C.F.R.
§ 416.945(a)); see also Hanna v. Astrue, 395 Fed. App’x 634, 635 (11th Cir. Sept. 9, 2010)
(per curiam) (“A claimant’s RFC is ‘that which [the claimant] is still able to do despite
the limitations caused by his . . . impairments.’”) (quoting Phillips v. Barnhart, 357 F.3d
1232, 1238 (11th Cir. 2004)).
“In making an RFC determination, the ALJ must consider
the record evidence, including evidence of non-severe impairments.”
Hanna, 395 Fed.
App’x at 635 (citation omitted).
The ALJ is responsible for determining a claimant’s RFC.
See, e.g., 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.”); 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[.]”
In determining a claimant’s RFC, the ALJ, further,
considers a claimant’s “ability to meet the physical, mental, sensory, or other
requirements of work, as described [more fully] in paragraphs (b), (c), and (d) of [§
20 C.F.R. § 416.945(a)(4).
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, No. 5:10–cv–478–Oc–18TBS, 2011 WL 5357907, at *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, No. CV 110–052, 2011 WL 2469832, at *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. June 17, 2011),
with Green v. Social Sec. Admin., 223 Fed. App’x 915, 923-24 (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, 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 decision to give less
than controlling weight to such an opinion,4 223 Fed. App’x at 923-24; 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.
Saunders v. Astrue, Civil Action No. 1:11cv308–WC, 2012 WL 997222, at *5 (M.D. Ala.
Mar. 23, 2012) (“It is unclear how the ALJ reached the conclusion that Plaintiff ‘can lift
An ALJ’s articulation of reasons for giving less than controlling weight to a
treating source’s RFC assessment must, of course, be supported by substantial evidence. See,
e.g., Gilabert v. Commissioner of Soc. Sec., 396 Fed. App’x 652, 655 (11th Cir. Sept. 21, 2010) (per
cuiam) (“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 Soc. Sec. Admin., 389 Fed. App’x
944, 947-48 (11th Cir. July 28, 2010) (per curiam) (same).
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, 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
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. App’x at 635-36 (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); Dixon v. Astrue, 312 Fed.
App’x 226, 229 (11th Cir. Fed. 13, 2009) (per curiam) (after noting,“‘[w]hile we may not
supply a reasoned basis for [an] agency’s action that the agency itself has not given, we
will uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned[,]’” vacating a district court’s decision to affirm the ALJ where “the ALJ’s
path [was] not reasonably discernible”) (quoting Zahnd v. Secretary, Dep’t of Agric., 479
F.3d 767, 773 (11th Cir. 2007)).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner on appeal—using, for example, “the record as a whole” or pointing the
Court to record evidence not mentioned in the ALJ’s decision—but rather, must be
clearly set forth in the ALJ’s decision.
See, e.g., Durham v. Astrue, Civil Action No.
3:08CV839-SRW, 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.”) (emphasis in original).
The ALJ’s decision makes it clear that he relied on Ms. Brody’s physical RFC (see
R. 22 (assigning it “great weight”)); the decision to assign it “great weight” coupled
with the fact that the ALJ misidentifies Ms. Brody as “the State agency medical
examiner” (id.), moreover, makes it clear that the findings in the physical RFC
assessment were at least central to the ALJ’s determination as to the plaintiff’s ability to
perform the physical requirements of work. Thus, the Court must now examine the
remaining evidence of record—pertaining to the plaintiff’s ability to perform the
physical requirements of work—the ALJ lists in his RFC determination, and determine,
once the SDM’s physical RFC assessment is excluded, whether the RFC is supported by
See Siverio v. Commissioner of Soc. Sec., 461 Fed. App’x 869, 871-72
(11th Cir. Feb. 23, 2012) (per curiam).
In Siverio, it was “undisputed that the ALJ erroneously relied on the RFC
assessment of Zuleika Martin as a medical opinion, even though Martin was a ‘single
decision maker’ with no apparent medical credential” and, as such, “was not an
acceptable medical source.
Nonetheless, the ALJ mistakenly treated Martin’s opinion
that Siverio could perform medium work as the ‘expert opinion’ of a ‘DDS physician [
],’ ‘State Agency physician[ ],’ and ‘DDS medical consultant[ ].”
Eleventh Circuit reversed and remanded the district court’s decision to affirm the
This was not a harmless error. The ALJ’s opinion shows not only that the
ALJ labored under the mistaken belief that Martin’s RFC assessment had
been authored by a physician, but also that he gave Martin’s RFC
assessment “significant weight.” The remaining record evidence does
not provide substantial evidence for the finding that Siverio was capable
of performing medium work. Other than Martin’s opinion, which the
ALJ erroneously relied upon as a medical opinion, there is nothing in the
record that could have reasonably led the ALJ to conclude that Siverio
could occasionally lift fifty pounds and frequently lift twenty-five pounds,
and thus perform medium work. Thus, it appears it was primarily on
the basis of Martin’s RFC assessment that the ALJ concluded that Siverio
could perform medium work. Because substantial evidence does not
support this finding, we reverse and remand for reconsideration of
Id. at 872; compare id., with Carter v. Astrue, Civil Action No. 3:11CV508–SRW, 2012 WL
2135471, at *4 (M.D. Ala. June 13, 2012) (finding harmless error where an ALJ relied on a
state agency RFC assessment he “acknowledge[d] . . . is that of a single
decision-maker,” and to which the ALJ assigned “‘little weight’ to the extent that it
differ[ed] from his own conclusions[,]” instead choosing to “assign ‘greater weight to
the treating and examining physician[s’] reports,” because “the ALJ’s express reasoning
does not suggest that he ‘essentially adopted the State Agency RFC”) (citing Siverio); see
also Stewart v. Astrue, Civil Action No. 11–1338, 2012 WL 1969318, at *4-6 (E.D. Pa. May
31, 2012) (“Even if there were a concern that the ALJ labored under the mistaken belief
that the Physical RFC form at Exhibit 10F had been authored by a physician[, rather
than a DDS disability adjudicator], the error would be harmless in light of the
remaining record evidence providing substantial evidence for the finding that Stewart
was capable of performing work at the light exertional level.”) (citing Siverio).
Here, like Siverio, once the SDM’s RFC assessment is excluded,
[t]he remaining record evidence does not provide substantial evidence for
the finding that [the plaintiff] was capable of performing [light] work.
Other than [Brody’s] opinion, which the ALJ erroneously relied upon . . . ,
there is nothing in the record that could have reasonably led the ALJ to
conclude that [the plaintiff] could . . . perform [light] work. Thus, it
appears it was primarily on the basis of [Brody’s] RFC assessment that the
ALJ concluded that Siverio could perform [light] work.
Id. at 872
Regarding the plaintiff’s ability to perform the physical requirements of work,
the ALJ’s decision cites evidence to show that the plaintiff (1) received conservative
treatment for an on-the-job injury he suffered in March, 2008 (see R. 21); (2) uses a
non-prescribed cane (see id.); gave testimony inconsistent with VA medical records
regarding falling and/or his ability to “ambulate without difficulty” (see id.); (3) was
diagnosed with diabetes mellitus, hepatitis C, and low back pain in March, 2009 (see id.);
and (4) “has been non-compliant with the treatment regimens prescribed for his
diabetes mellitus and hepatitis C impairments” (see id. at 21-22).
The ALJ also notes
that neither Dr. Kidd, during her consultative examination of the plaintiff, nor Dr.
Cibley, with the VA, gave “an opinion as to the ability of the claimant to perform work
(R. 21-22; see also R. 22 (“[N]o treating physician has opined that the claimant
cannot perform light work.”).)
This evidence, standing alone, cannot substantiate the ALJ’s determination that
the plaintiff retains the physical ability to perform light work.
See, e.g., Saunders, 2012
WL 997222, at *5 (concluding that, where the record does not include an evaluation of
the plaintiff’s ability to perform the physical requirements of work, “[i]t 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”); cf. Dunham v. Astrue, No. 1:09CV 53 SNLJ(LMB), 2010
WL 2553878 (E.D. Mo. May 6, 2010) (“There is no opinion from any physician, treating
or consulting, regarding plaintiff’s ability to function in the workplace with his
combination of impairments.
As such, there is no medical evidence in the record
suggesting that plaintiff can, or cannot, perform light work.”) (emphasis added), report
& recommendation adopted, 2010 WL 2553882 (E.D. Mo. June 23, 2010).
And no evidence
relied on by the ALJ, other than the erroneously-relied-on physical RFC assessment by
the SDM—in which, as the ALJ notes, the SDM “opined that the claimant can lift up to
twenty pounds occasionally and ten pounds frequently” and “that the claimant can
stand or walk for six hours in an eight hour work day and can sit for six hours in an
eight hour work day” (R. 22)—“could have reasonably led the ALJ to conclude that [the
plaintiff] could . . . perform [light] work.”
Siverio, 461 Fed. App’x at 872.
Siverio, “it appears it was primarily on the basis of [the SDM’s] RFC assessment that the
ALJ concluded that [the plaintiff] could perform [light] work.”
Thus, having determined that the ALJ has failed to provide the necessary linkage
between the RFC assessment and specific evidence in the record bearing upon the
plaintiff’s ability to perform, at least, the physical requirements of work, remand is
That is because, consistent with the standard set forth above and
longstanding precedent, it is not for this Court to determine whether other record
evidence not mentioned in the ALJ’s decision, and thus not “linked” to his RFC
determination, can support his finding that the plaintiff can perform light work.
This court’s review is limited to determining whether the ALJ’s decision is
based upon substantial evidence and whether the ALJ properly applied
the law. The process of reevaluating [the record evidence that may be
considered to determine whether it supports a particular RFC] is not a
matter for this court to determine but rather a determination to be made
by the ALJ as fact finder.
McCandless v. Astrue, No. 1:10–cv–209–MP–GRJ, 2011 WL 7070528, at *10 (N.D. Fla. Dec.
20, 2011), report & recommendation adopted, 2012 WL 174828 (N.D. Fla. Jan 20, 2012); see
also id. (noting “[t]his approach is consistent with the Supreme Court’s observation in
INS v. Ventura that a court reviewing the decision of an administrative agency may not
“‘conduct a de novo inquiry into the matter being reviewed and reach its own
conclusions based on such an inquiry’” but that “‘the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation’”) (quoting 537 U.S. 12, 16 (2002) (quoting, in turn, Florida Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985) and SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))).
Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying the plaintiff benefits be reversed and remanded pursuant to sentence
four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further
proceedings not inconsistent with this decision. The remand pursuant to sentence four
of § 405(g) makes Plaintiff a prevailing party for purposes of the Equal Access to Justice
Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates this
Court’s jurisdiction over this matter.
DONE this the 10th day of August, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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