Salter v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDERED entered. 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) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 9/4/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HENDRIETTA SALTER,

:

Plaintiff,

:

v.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 11-00681-C

:
MEMORANDUM OPINION AND ORDER

The 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
application for 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. 21 (“In accordance with the 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.”).)

Upon

consideration of the administrative record (“R.”) (Doc. 12), the plaintiff’s brief (Doc. 13),
the Commissioner’s brief (Doc. 19), and the parties’ presentations during oral argument
on July 26, 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
1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 21 (“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 district
court.”).)

Procedural Background
On November 10, 2008, the plaintiff filed an application for SSI (R. 19, 111-118,
128), alleging disability beginning March 4, 2008, due to heart problems, shortness of
breath, high blood pressure, and swelling.
January 8, 2009.

(See R. 19, 63-68.)

Her application was initially denied on

A hearing was then conducted before an

Administrative Law Judge on March 19, 2010 (see R. 33-59).

On March 26, 2010, the

ALJ issued a decision finding that the claimant was not disabled (R. 16-30), and the
plaintiff sought review from the Appeals Council (see R. 9).

The Appeals Council

issued its decision declining to review the ALJ’s determination on October 12, 2011 (see
R. 1-7)—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 December 2, 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.

Id.

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.
834, 836 (11th Cir. 1985).

Sryock v. Heckler, 764 F.2d

Although at the fourth step “the [plaintiff] bears the burden

of demonstrating the inability to return to [his or] her past relevant work, the
2

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.
(1971).

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
[Commissioner’s] decision.”

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.”

Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per

curiam) (citing Dyer v. Barnhart, 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.

Commissioner of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the plaintiff asserts three separate claims:
1.

The Commissioner erred in posing an impermissibly vague hypothetical
question to the vocational expert;

2.

The Commissioner erred both in rejecting the opinion of the plaintiff’s
treating physician and finding that she can perform “light work,” a
finding which is not supported by the medical opinion of either a treating
or examining medical source, or the medical evidence as a whole; and

3.

The Appeals Council erred in failing to remand the claim to the
Commissioner for consideration of “new and material” evidence.

(Doc. 13 at 3.)

Because the Court determines that the decision of the Commissioner

should be reversed and remanded for further proceedings based on the plaintiff’s

3

second claim, regarding the RFC determination, there is no need for the Court to
consider the plaintiff’s other claims.

See Robinson v. Massanari, 176 F. Supp. 2d 1278,

1280 & n.2 (S.D. Ala. 2001); cf. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985)
(“Because the ‘misuse of the expert’s testimony alone warrants reversal,’ we do not
consider the appellant’s other claims.”).
Discussion
A.

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.”

Peeler v.

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
4

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, 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 [§
416.945].”

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
5

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,2 223 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.

Compare, e.g.,

Saunders v. Astrue, Civil Action No. 1:11cv308–WC, 2012 WL 997222, at *5 (M.D. Ala.
2

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).

6

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, 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
7

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
8

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).
B.

The ALJ’s Decision.

The ALJ found the plaintiff’s valvular heart disease, anemia, and chronic
lymphedema to be severe impairments (R. 21) and determined that the plaintiff has the
RFC to perform light work as defined in § 416.967(b) with certain additional restrictions:
[she] can occasionally climb ladders, ropes, and scaffolds. She must
work in a ventilated work environment and avoid concentrated exposure
to fumes, gases, or odors and extremes of temperature. She must take
regular breaks in order to sit and elevate her legs. She can occasionally
push and pull leg controls. She can adapt to minimal changes in work
setting, and she can do simple, routine, repetitive tasks.
9

(R. 22.)

As to the plaintiff’s chronic lymphedema, the ALJ stated that the RFC

“accounts for this impairment[] by indicating that the claimant will have to take regular
breaks to elevate her legs, and she can only occasionally operate leg controls.”

(R.

23-24.)
In making her RFC determination, the ALJ concluded that the opinion of the
plaintiff’s longtime treating physician, Stanley Barnes, should not be given controlling
weight. Dr. Barnes, whose records as to the plaintiff appear in the administrative
record at R. 188-213, 229-231, and 242-246, began treating the plaintiff in August, 2005
(see R. 189). On March 30, 2009, he completed a physical capacities evaluation (R. 226),
in which he determined, among other things, that the plaintiff can sit for not more than
two hours and can stand/walk combined for not more than two hours in the course of
an eight-hour workday, and a clinical assessment of pain (R. 227-228), in which he
determined that the plaintiff has pain present in such an extent as to be distracting to
the adequate performance of daily activities or work and that physical activity,
including walking and standing, greatly increases the plaintiff’s pain to such a degree
as to cause distraction from or total abandonment of tasks (R. 227).
As to Dr. Barnes’s opinion, the ALJ determined that it should be
given little weight because it was not supported by the objective medical
evidence. For instance, there is no MRI evidence showing results that
would support that level of pain or the level of restriction that Dr. Barnes
indicated was related to the claimant’s musculoskeletal impairments (All
Exhibits). On February 16, 2009, Dr. Barnes reported that they did an
x-ray of the claimant’s lumbar spine at her request and they did not find
anything diagnostically significant (Exhibit 7F, page 2). . . . [As to the
claimant’s] lymphedema, [ ] there is no objective evidence that these
impairments would produce the level of pain of the need for the
restrictions described by Dr. Barnes. . . .
(R. 24.)
10

Although the ALJ concluded that Dr. Barnes’s opinion should be given little
weight, she considered “[t]he opinion the State agency examiner[, rendered on January
8, 2009,] . . . persuasive”—“[T]he State agency medical examiner opined that the
claimant could perform medium level work which includes the ability to occasionally
lift and carry up to fifty pounds, the ability to stand or walk for six hours out of eight,
and to sit for six hours out of eight (Exhibit 4F, page 2 [R. 216]).”

(R. 24.) The ALJ,

however, ultimately rejected that RFC assessment as well, determining that, “given the
diagnoses of chronic lymphedema and severe anemia, the residual functional capacity
[should be] reduced to light.”
C.

(R. 24.)

Lack of Substantial Evidence—reliance on the opinion of an SDM; failure
to explain “regular breaks.”

The ALJ’s RFC determination is not based on substantial evidence for two
reasons, one of which compounds the error of the other.

First, to the extent the RFC

assessment completed by “the State agency examiner” (R. 215-222) is an RFC
assessment by a Single Decision Maker (or “SDM”) (see R. 222 (indicating that Sandra H.
Knox, whose name appears in the signature line at the conclusion of the report, is an
SDM), it is entitled to no weight. As the Commissioner conceded recently, in Stone v.
Astrue, No. CA 11–00517–C, 2012 WL 3288718 (S.D. Ala. Aug. 10, 2012), an SDM “is not
a medical source and her conclusions [are] not entitled to any weight[,]” id. at *3
(quoting the Commissioner’s brief (citing, in turn, 20 C.F.R. § 404.906)) (emphasis in the
Court’s opinion); see also Siverio v. Commissioner of Soc. Sec., 461 Fed. App’x 869, 872 n.3
(11th Cir. Feb. 23, 2012) (per curiam) (“[T]he SSA’s Program Operations Manual System
(‘POMS’) explicitly distinguishes RFC assessments produced by an SDM from those
produced by a medical consultant, and states that SDM-completed forms are not
11

opinion evidence at the appeals level.”) (citation and internal quotation marks omitted).
However, reliance on an RFC assessment completed by an SDM is not always fatal.
If the ALJ’s RFC is otherwise supported by substantial evidence, any
reliance on a source entitled to no weight[, such as an SDM,] may be
harmless error, and, if so, the Court will affirm the Commissioner’s
decision [if that decision] provides the necessary linkage between the RFC
assessment and specific[, proper] evidence in the record bearing upon the
plaintiff’s ability to perform the physical, mental, sensory, and other
requirements of work.
Stone, 2012 WL 3288718, at *3 (emphasis in original).
But here, aside from any reliance on a source entitled to no weight, there is
another problem with the ALJ’s RFC assessment: the ALJ fails to explain her decision to
further limit the plaintiff’s ability to perform light work by requiring that the plaintiff
“must take regular breaks in order to sit and elevate her legs” to account for her chronic
lymphedema.

(R. 22-24.)

In his brief, the Commissioner contends that
it is apparent that the ALJ’s usage of the terms “regular breaks” and
“regularly scheduled breaks[,” in her hypothetical to the vocational
expert,] was intended to mean customary, usual, or normal breaks – not
additional break time in excess of that generally permitted by employers,
as alleged by Plaintiff. Indeed, the ALJ did not conclude that Plaintiff
would require additional break time beyond that generally permitted by
employers; rather, the ALJ simply found that Plaintiff must be permitted
to use her “regularly scheduled breaks” in order to “sit and elevate her
legs” (Tr. 22, 56-57). Notably, Social Security Ruling 96-9p indicates that
regular breaks include “a morning break, a lunch period, and an afternoon
break at approximately 2-hour intervals.” Social Security Ruling (“SSR”)
96-9p, 1996 WL 374185, at *6 (1996).
(Doc. 19 at 9.)
Unfortunately, that is not clear in the ALJ’s decision.

The ALJ first found “that

the claimant has the residual functional capacity to perform light work as defined in 20

12

CFR 416.967(b).”

(R. 22 (emphasis added).) 3

The ALJ then imposed additional

limitations on the plaintiff’s ability to perform light work.

The two additional

limitations were meant to “account for” the plaintiff’s chronic lymphedema.
23-24.)

(See R.

The first additional limitation is that “[s]he can occasionally push and pull leg

controls.”

(R. 22.)

Clearly, this limits a portion of the definition of light

work—“[l]ight work involves . . . sitting most of the time with some pushing and
pulling of arm or leg controls.”

So too does the second limitation—the requirement

that the plaintiff have the ability to “take regular breaks in order to sit and elevate her
legs”—modify the general definition of light work, which, for example, may “require a
good deal of walking or standing[.]” Compare id., with § 416.967(b) (“To be considered
capable of performing a full or wide range of light work, you must have the ability to
do substantially all of these activities.”) (emphasis added).

Accordingly, the

Commissioner’s explanation for why the ALJ imposed the requirement that the plaintiff
“must take regular breaks in order to sit and elevate her legs”—which is “regular
breaks” does not mean additional break time—makes little sense.

If it does not mean

additional break time, why did the ALJ have to include it in her RFC determination, as

3

Light work is defined in the regulations as

involve[ing] lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.
20 C.F.R. § 416.967(b) (emphasis added).

13

an additional limitation on the plaintiff’s ability to perform light work? 4
Further, more troubling than any confusion caused by the use of “regular
breaks” is that—even if the Court accepts that the reasons given by the ALJ for not
giving controlling weight to Dr. Barnes’s opinions are supported by substantial
evidence5—once the erroneously-relied-on RFC assessment by the SDM is removed
from consideration, there is not substantial evidence in the record to support the ALJ’s
determination that the plaintiff retains the ability to perform light work with the
additional limitations.
Although the Commissioner’s brief points to medical treatment notes and
evidence regarding the plaintiff’s ability “to perform a wide range of activities of daily
living” (Doc. 19 at 16-17), the ALJ’s decision cites only to the opinions of Dr. Barnes and
the SDM as evidence to show the plaintiff’s ability to perform the physical requirements
of 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’
4

To the extent the ALJ has determined that the plaintiff needs breaks in addition
to the regular breaks, set forth in SSR 96-9p, that obviously impacts the plaintiff’s ability to
perform work. Cf. Borski v. Barnhart, 33 Fed. App’x 220, 224-25 (7th Cir. Apr. 5, 2002) (“The
Social Security Administration has recognized that someone who needs to go regularly from
one position to the other cannot do either [light or sedentary] work unless the need to change
positions can be ‘accommodated by scheduled breaks and a lunch period.’ Where scheduled
breaks are not enough, the applicant needs a so-called ‘sit/stand option.’” (quoting SSR 96-9p).
5

A finding that the ALJ failed to articulate reasons, supported by substantial
evidence, for rejecting a treating source’s opinion, or a portion thereof, ends the Court’s review
of an ALJ’s RFC determination. See, e.g., Thomas v. Astrue, No. CA 11–0406–C, 2012 WL
1145211, at *9 (S.D. Ala. Apr. 5, 2012) (“Because the undersigned finds that the ALJ did not
explicitly articulate an adequate reason, supported by substantial evidence, for rejecting a
portion of [the treating physician’s] PCE assessment, this Court must necessarily find that the
ALJ’s RFC determination is not supported by substantial evidence.”).

14

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).
Conclusion
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 and ORDERED this the 4th day of September, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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