Salter v. Astrue

Filing 17

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying 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 3/31/2014. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HOWARD SALTER,
Plaintiff,
vs.

:
:
:

CA 12-0657-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.

MEMORANDUM OPINION AND ORDER
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 his
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 14 & 16 (“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, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of the parties at the August 21, 2013 hearing before the Court,
it is determined that the Commissioner’s decision denying 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 Docs. 14 & 16 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of

(Continued)

Plaintiff alleges disability due to degenerative disc disease of the lumbar spine
with spondylosis, bilateral shoulder arthrosis, bilateral knee arthrosis, depression and
anxiety. The Administrative Law Judge (ALJ) made the following relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2010.
2.
The claimant has not engaged in substantial gainful activity since
May 15, 2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971
et seq.).
.

.

.

3.
The claimant has the following severe impairments: degenerative
disc disease of the lumbar spine with spondylosis, bilateral shoulder
arthrosis, bilateral knee arthrosis, substance abuse disorder, depression,
and anxiety (20 CFR 404.1520(c) and 416.920(c)).
.

.

.

4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
.

.

.

5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can
[only] occasionally reach overhead, climb stairs/ramps, bend, stoop,
kneel, crouch, or have contact with the general public. The claimant
cannot have complex or detailed job instructions but can do simple one
and two-step job instructions. The claimant can never climb ladders,
ropes, or scaffolds; work at unprotected heights or around dangerous
equipment; crawl; or work in crowds.
In making this finding, I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the

Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))

2

objective medical evidence and other evidence, based on the requirements
of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p. I have also
considered opinion evidence in accordance with the requirements of 20
CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, I must follow a two-step process
in which it must first be determined whether there is an underlying
medically determinable physical or mental impairment(s)—i.e., an
impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques—that could reasonably be expected to
produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, I must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they
limit the claimant’s functioning. For this purpose, whenever statements
about the intensity, persistence, or functionally limiting effects of pain or
other symptoms are not substantiated by objective medical evidence, I
must make a finding on the credibility of the statements based on a
consideration of the entire case record.
The claimant alleges that he has difficulty[] sitting, standing, walking,
lifting, and carrying things. He stated that he also has problems with
concentration.
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence, and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.
In terms of the claimant’s back and knee impairments, the claimant’s
allegations are not fully supported by the medical evidence. The claimant
testified that he wears a back brace that he purchased himself. He also
stated that he is prescribed narcotic medications for treatment of his pain.
While Dr. Fletcher has prescribed the claimant’s narcotic medications
repeatedly, there is relative consistency in the dosage and frequency.
Although it is a substantial dosage of narcotic medications, there has been
little change in his medications, little change in his treatment, and little
treatment or clinical signs showing objective evidence of pain in Dr.
Fletcher’s treatment notes. The claimant had a positive straight leg raising
test according to Dr. Fletcher, but there was evidence of only increased
muscle tension reported as a result of his back impairment. On the other
hand, Dr. Pace stated in May 2009 that the claimant specifically did not
have a positive straight leg raising test, a clinical sign to confirm pain.
Furthermore, Dr. Fletcher even reported in September 2009 that the
claimant described only occasional left sciatica and frequent muscle
3

spasms. On the other hand, there are no clinical observations that confirm
the existence or severity of either complaint, aside from the consistent
positive straight leg raising test, throughout the treatment notes. As a
result, the extent of the use of pain medications and the claimant’s
allegations are inconsistent with the proportionality treatment he has
received by Dr. Fletcher and Dr. Pace.2
Likewise, while Dr. Fletcher observed tenderness in both the claimant’s
knees and shoulder[s] during several examinations, there has been no
significant evidence of ongoing treatment of the claimant’s knee
impairment[s].3 There is no significant change in his medications or
treatment that can be attributed to knee pain at the examination during
which knee pain was reported or “tender both shoulders & both knees”
was identified in his treatment.
The claimant testified that his medications cause him to experience
drowsiness and forgetfulness. However, even Dr. Fletcher stated that the
claimant’s side effects “would not impose limitations to such a degree as
to create serious problems in most instances[“].4 Likewise, the claimant’s
treatment notes provide no evidence that he has reported drowsiness or
forgetfulness to the extent he alleges. The claimant has been prescribed
narcotic medications, but the claimant’s treatment notes show far greater
reports of gastrointestinal complaints that have caused the adjustment in
his medications. However, the claimant has sought refills with his general
practitioner and been advised that he must maintain his narcotic
medications with Dr. Fletcher. Furthermore, the substantial gap in
treatment with Dr. Fletcher between 2005 and June 2009 is also
inconsistent with the claimant’s allegations prior to 2009.
After the onset date, the claimant also testified that he returned to work
for a period of time. The claimant testified that in 2009 his work at a
construction site was limited due to weather conditions. Nevertheless, he
stated that he built scaffolding, built framing, and dug footers for the
construction site. The claimant also testified that he was helping his
2

The undersigned has no idea what this statement means, particularly since the
pain medications plaintiff takes were prescribed by Dr. Fletcher.
3

This is another curious statement since the evidence of record establishes that Dr.
Fletcher was treating plaintiff for his knee and shoulder impairments and the ALJ found these
impairments to be severe impairments.
4

It is because of this reference to (and apparent reliance upon) Dr. Fletcher’s pain
assessment forms (see Tr. 331 & 344) that the Court is unsure whether the ALJ—later in her
opinion—meant to reject Dr. Fletcher’s pain assessment forms. Of course, if she did not intend
to reject these forms, she arguably should have included in her hypothetical questions posed to
the VE that “[p]ain is present to such an extent as to be distracting to the adequate performance
of work activities.” (Tr. 331 & 344.)

4

mother perform household repairs recently, but he stated that he was
working on a ladder, had to use a tennis racket to swat bees, and fell off
the ladder injuring himself. The claimant also testified that he mowed the
grass at least twice on a riding lawnmower in the recent past. However,
his mother reported that he mowed the grass for thirty minutes twice a
month in August 2009, but he testified that using the riding lawnmower
caused him to be in bed for two days as well. He also reported working on
cars for friends; however, he also stated that he no longer works on cars
despite his report of very recent automotive repair work. The claimant
testified that he is in the process of selling his cars. He stated that he had
several cars that he can no longer detail or repair. With regard to more
simple activities, the claimant’s mother also reported that he can take out
the trash, cook meals, wash laundry, and shop for groceries. The claimant
stated that he may even take short fishing trips also. The claimant also
reported that he cares for his dog and is able to live alone. He did live
with his mother but now lives in her house alone. The claimant reported
that he uses alcohol regularly when someone brings him alcohol;
however, the claimant testified that his most recent alcohol use occurred
one week prior to the hearing. He stated that a friend brought their (sic)
car to him to fix it. He stated that he crawled under the dashboard to get
to the fuse box during this instance.
The claimant did have an x-ray in June 2009 that showed degenerative
changes in his lumbar spine and evidence of a fracture of the transverse
process on the left.5 The medical evidence shows that[] although
scaffolding did fall on him injuring his back in 2009, there is little
treatment to show that this condition has not healed. There is no further
treatment for his back aside from the pain management treatment that has
been greatly constant with regard to the medications and clinical findings.
Likewise, after the time of his injury of his back in 2009, it was noted that
“the Roxicodone dosage is adequate” in February 2010. Furthermore, in
September 2009, the claimant’s condition was described as “occasional left
sciatica & frequent lumbar spasms.” One of the few changes made to his
medications was in August 2009 when he did report that the Lortab
dosage was not strong enough. Likewise, even at the time of his initial xray, the claimant’s emergency room records show his pain to be mild in
severity and aching in quality. He was also in only “mild” distress.
Therefore, due to his back impairment and knee impairment, the claimant
can only occasionally climb stairs/ramps, bend, stoop, kneel, or crouch.
The claimant can never climb ladders, ropes, or scaffolds or work at
unprotected heights or around dangerous equipment due to his
medications. Likewise, his combination of knee, back, and shoulder
impairments could preclude all crawling. However, the claimant would
5

There were actually several fractures of the transverse process of plaintiff’s
lumbar spine on the left. (Tr. 294.)

5

not be limited in his ability to sit for six hours in an eight-hour workday or
stand and/or walk for six hours in an eight-hour day.
In terms of the claimant’s shoulder impairment, his alleged limitations are
not fully supported by the medical evidence. The claimant testified that
his “rotator cuffs are scraping and scrubbing.” However, the claimant
testified that he is able to use the computer. His mother also reported that
he uses a mobile phone to send text messages and plays the guitar. Dr.
Fletcher noted pain in his shoulders, but there has been no treatment, xrays, or other diagnostic testing for his shoulder[s] during any current
treatment. The claimant was advised to consider a left shoulder injection
in the past. However, he was advised that moist heat and exercise were
advisable as the only treatment. Nevertheless, the treatment all occurred
in 2000, several years prior to the claimant’s alleged onset date. There is no
treatment that confirms any worsening of his shoulder condition other
than his infrequent reports of pain to Dr. Fletcher. Likewise, despite the
use of injections in the past and the recommendation for an MRI, the
claimant has no evidence that he sought treatment for current shoulder
pain even to the extent he received treatment for his 2000 shoulder
impairment. Dr. Fletcher even reported twice that the claimant is capable
of grasping and fine manipulation. While reduced weight is given to his
opinion due to the inconsistency with the medical evidence and even his
own treatment notes, Dr. Fletcher’s failure to even address limitations
regarding the claimant’s shoulder impairment is further evidence of
inconsistency in the claimant’s reports of his pain symptoms and his
current allegations. Nevertheless, as a result of his shoulder impairment,
the claimant would be limited to only occasional overhead reaching.
In terms of the claimant[‘s] mental impairments and substance abuse, the
claimant’s allegations are not fully credible. The claimant testified that he
has panic attacks that feel like a heart attack. However, the claimant
testified that prior to the hearing he had a panic attack. He stated that his
medications cause them to occur very seldom. The claimant also testified
that he has difficulty concentrating and problems with his memory and
reasoning. However, he testified that he only receives medications from
his general practitioner. He denied receiving any treatment from a mental
health specialist. In fact, the claimant’s treatment with Dr. Pace has
occurred only on a semiannual basis []. There is little evidence that any
more frequent treatment was sought, required, or advised. Dr. Pace also
has very little clinical evidence to support any allegations of substantial
ongoing depression or anxiety. There are no significant changes made to
his medications and there is little evidence that his long-term prescriptions
do not substantially control his symptoms. Likewise, there have been
multiple instances that show the claimant to have an appropriate mood or
affect or even no reports of any clinical signs consistent with symptoms of
depression or anxiety. He even had a number of missed appointments
with Dr. Pace although only one in May 2009 appears to indicate that he
missed any significant period without medications.
6

However, despite his reported deficit in concentration, the claimant
reported using the computer and the Internet. The claimant stated that he
follows written directions fairly well although he may have to read them
two to three times. [H]e also stated that he gets along well with authority
figures. However, the claimant also stated that he continues to use alcohol
once or twice a week when anyone gives him alcohol. However, he has
been arrested for driving under the influence in the past. The claimant
testified that his license is currently suspended also. However, his
treatment for alcohol abuse has been all before 2004.
Likewise, the claimant’s reports of side effects caused by his medications
have also been considered. He stated that he has difficulty with his
memory, but the claimant has not reported this complaint during
treatment. The claimant has been prescribed narcotic medications, but the
claimant’s treatment notes show far greater reports of gastrointestinal
complaints that have caused the adjustment in his medications. Dr.
Fletcher stated that the claimant’s side effects “would not impose
limitations to such a degree as to create serious problems in most
instances[“]. Likewise, Dr. Eno stated that the claimant would have the
ability to understand, remember, and carry out very short simple
instructions and attend for two hour periods. She stated that there is no
significant limitation in his social interaction or adaptation. However, in
light of his testimony that the panic attacks may have some residual
episodes despite his medications, the claimant may have difficulty with
more than occasional contact with the general public or working in
crowds. Therefore, the claimant would be limited to only occasional
contact with the general public and he cannot work in crowds. The
claimant also cannot have complex or detailed job instructions but can do
simple one and two step job instructions.
As for the opinion evidence, significant weight is given to the opinion of
Dr. Eno. Her opinion is the most consistent with the medical evidence.
Although the claimant is given the benefit of the doubt that he may have
moderate limitations in his ability to maintain social functioning as a
result of his reports of panic attacks, the opinion of Dr. Eno is the most
consistent opinion evidence regarding the claimant’s functioning in light
of his psychological impairments.
.

.

.

Likewise, no significant weight can be given to the opinion of Dr. Fletcher
expressed on either of his physical capacities evaluation forms. He has
provided pain management treatment and nothing further. Although he
identifies the claimant’s pain as significant, there is no objective findings
other than a straight leg raising test that showed the presence or extent of
the claimant’s pain. Dr. Fletcher identifies his treatment as pain
management, but he continued to report that the claimant’s pain is
uncontrolled in his physical capacities evaluation. This is inconsistent with
his unchanging medical treatment and his observations and notes. Dr.
7

Fletcher has routinely provided the same treatment, made the same
observations and then followed up with the claimant in the next month.
His statement that the claimant’s pain is uncontrolled is inconsistent with
the sameness of his treatment. Dr. Fletcher’s opinion is also inconsistent
with the remainder of the medical evidence regarding both pain and
functional limitations.
In sum, the above residual functional capacity assessment is supported by
the inconsistency of the claimant’s reported symptoms, the effectiveness
of the claimant’s medications, the limited changes in the claimant’s
medications over time, the lack of clinical signs or diagnostic test results
confirming the extent of the claimant’s allegations, the consistency in the
claimant’s effective pain treatment, the substantial inconsistency between
the claimant’s activities of daily living and the reported physical
limitations, the infrequency of the claimant’s psychological treatment, the
lack of specialist treatment for his mental impairments, the effectiveness of
the claimant’s medications and treatment provided by his general
practitioner, and the opinion of Dr. Eno.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
.

.

.

7.
The claimant was born on August 18, 1966 and was 40 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferrable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
.

.

.

If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.21. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
8

which these limitations erode the unskilled light occupational base, I
asked the vocational expert whether jobs exist in the national economy for
an individual with the claimant’s age, education, work experience, and
residual functional capacity. The vocational expert testified that given all
of these factors the individual would be able to perform the requirements
of representative occupations such as non-postal mail clerk, DOT Code
209.687-026; office helper, DOT Code 239.567-010; light custodial work or
housekeeping, DOT Code 323.687-014. The vocational expert testified that
there are approximately 1,800 jobs as a non-postal mail clerk, 1,200 jobs as
an office helper, and 5,300 jobs as a light custodial work[er] in the state of
Alabama. He testified that there are approximately 350,000 jobs as a nonpostal mail clerk, 360,000 jobs as an office helper, and 1,100,000 jobs as
light custodial work[er] in the national economy.
Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, I conclude that,
considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy. A finding of “not disabled” is therefore appropriate under the
framework of the above-cited rule.
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from May 15, 2007, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
(Tr. 25, 26, 28-32, 32-33, 33 & 34 (internal citations omitted; footnotes added; emphasis in
original).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the
hearing decision became the final decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that he is
unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (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; and (4) the claimant’s age, education and
work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the
Commissioner’s burden to prove that the claimant is capable, given his age, education
9

and work history, of engaging in another kind of substantial gainful employment,
which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that he can perform those light jobs
identified by the vocational expert, 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether
substantial evidence exists, we must view the record as a whole, taking into account
evidence favorable as well as unfavorable to the Commissioner’s] decision.” Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).6 Courts are precluded, however, from
“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam)7 (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. (quoting Crawford v. Commissioner of Social Security, 363 F.3d
1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Salter asserts two reasons why the Commissioner’s
decision to deny him benefits is in error (i.e., not supported by substantial evidence),

6

This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
7

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.

10

the first of which is very broad: (1) the Commissioner erred by improperly rejecting
the opinions of his treating physician, Dr. Raymond Fletcher, failing to adequately
develop the record, and improperly determining that he has the residual functional
capacity to perform “light work,” a finding which is not supported by linkage to either
the medical opinion evidence or reasonable inferences drawn from the medical
evidence as a whole; and (2) the Commissioner erred in basing his decision upon a
hypothetical question posed to the vocational expert which failed to fairly and
accurately describe his vocational limitations. The Court will address these issues in
reverse order.
A.

Hypothetical Questions Posed to the Vocational Expert. Salter contends

that the hypothetical questions posed to the vocational expert—and upon which the
ALJ relied upon in making her determination of “non-disability”—did not fairly and
adequately describe his vocational limitations because she failed to include in those
hypotheticals (and even in her ultimate RFC assessment) the full extent of his admitted
moderate degree of impairment in ability to maintain concentration, persistence or
pace. (Doc. 11, at 18-22.)
There is no question but that “[i]n order for a VE’s testimony to constitute
substantial evidence, the ALJ must pose a hypothetical question which comprises all of
the claimant’s impairments[/limitations].” Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.
1999) (citation omitted), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000).
As aforesaid, the plaintiff contends that the Commissioner erred in finding that he can
perform those light unskilled jobs identified by the VE since the hypothetical questions
upon which she relied in making this determination were incomplete (see Doc. 11, at 1822), specifically because the hypothetical question did not include the moderate
11

limitations in concentration, persistence, and pace found by the ALJ at the third step of
the sequential evaluation process (Tr. 27 (“With regard to concentration, persistence or
pace, the claimant has moderate difficulties. . . . Dr. Eno stated that [t]he claimant has
moderate difficulties in concentration, persistence, and pace.”)) and also mentioned at
step five of the sequential evaluation process (see Tr. 31 (“Dr. Eno stated that the
claimant would have the ability to understand, remember, and carry out very short
simple instructions and attend for two hour periods.”).8
The foregoing discussion provides an appropriate transition into consideration of
the issue raised by plaintiff, as does the Eleventh Circuit’s recognition in Winschel v.
Commissioner of Social Security, 631 F.3d 1176 (2011)9 that requiring a hypothetical
question posed to a VE to specifically account for limitations in concentration,
persistence, and pace identified in the Psychiatric Review Technique Form (“PTRF”)—
8

The first hypothetical question posed to the VE in this case: “I’m going to ask that
you assume we have an individual with the same work history as you’ve already described for
Mr. Salter. I’m going to ask that you assume we have an individual limited in the following
fashion: Lifting or carrying no more than 20 pounds occasionally, 10 pounds frequently;
overhead reaching no more than occasional; no climbing ladders, scaffolds, or ropes or work
around unprotected heights or dangerous equipment; no complex or detailed instructions; no
working in crowds.” (Tr. 80-81.) In response to this hypothetical question, the VE testified that
the hypothetical individual could not perform any of plaintiff’s past relevant work but could
perform light, unskilled entry level work as a non-postal mail clerk, officer helper, and light
custodial worker/housekeeper. (Id. at 81.) The ALJ posed a second hypothetical question which
added first some additional exertional limitations—that is limiting the hypothetical individual
to no crawling and only occasional climbing of stairs and ramps, bending, stooping, kneeling,
and crouching—and then the additional “mental” limitation that the individual could have no
more than occasional contact with the public; in response, the VE testified that his “answer” to
the previous hypothetical would not change. (Tr. 82.)
The ALJ based her third hypothetical question upon the physical capacities evaluation
forms completed by Dr. Raymond Fletcher (compare Tr. 82-83 with Tr. 332 & 343 (PCEs
completed by Dr. Fletcher)) and in response thereto the VE testified that the hypothetical
individual would be unable to perform any of plaintiff’s past relevant work or any other work
existing in significant numbers in the national economy. (Tr. 83.)
9

In bringing this issue to the Court’s attention, plaintiff heavily relies upon the
Winschel case. (See Doc. 11, at 20-21.)

12

or its mode of analysis—does not improperly conflate the PRT inquiry at steps two and
three of the sequential evaluation process with the RFC inquiry at steps four and five.
See id. at 1180. Indeed, “[t]hough the PRT and RFC evaluations are undeniably distinct,
nothing precludes the ALJ from considering the results of the former in his
determination of the latter.” Id. (internal citation omitted), citing Ramirez v. Barnhart, 372
F.3d 546, 555 (3rd Cir. 2004) (“’While [Social Security Ruling] 96-8p does state that the
[PRT] findings are “not an RFC assessment” and that step four requires a “more
detailed assessment,” it does not follow that the findings on the [PRT] play no role in
steps four and five, and [Social Security Ruling] 96-8p contains no such prohibition.’”).
Thus, in considering issues like the one raised by plaintiff in the instant case, the
Eleventh Circuit in Winschel provides additional guidance, as follows:
Other circuits have [] rejected the argument that an ALJ generally
accounts for a claimant’s limitations in concentration, persistence, and
pace by restricting the hypothetical question to simple, routine tasks or
unskilled work. But when medical evidence demonstrates that a claimant
can engage in simple, routine tasks or unskilled work despite limitations
in concentration, persistence, and pace, courts have concluded that
limiting the hypothetical to include only unskilled work sufficiently
accounts for such limitations. Additionally, other circuits have held that
hypothetical questions adequately account for a claimant’s limitations in
concentration, persistence, and pace when the questions otherwise
implicitly account for these limitations.
Id.; see also Syed v. Commissioner of Social Security, 441 Fed.Appx. 632, 635, 2011 WL
4425309, *3 (11th Cir. Sept. 22, 2011) (“[A]lthough the hypothetical question posed by
the ALJ to the VE did not expressly include Syed’s impairments, it implicitly accounted
for them, and thus, was not improper. As the record shows, the hypothetical included
that there were impairments, and that the individual would require a low-stress work
environment. Indeed, the medical evidence demonstrated that Syed could engage in
simple, routine tasks and unskilled work despite any limitations, as he was not
significantly limited in his ability to complete simple work-like procedures. The medical
13

evidence also showed that Syed understood and followed specific, multi-step
instructions, and was cooperative and responsive. Thus, Syed was only moderately
limited in his work capabilities, could accept instruction and criticism, and was not
significantly limited in his ability to complete simple work-like procedures. Because
simple, unskilled work sufficiently accounted for limitations in concentration,
persistence, and pace, as set forth in Winschel, the hypothetical posed adequately
accounted for Syed’s limitations as they were implicitly included.”); Kinnard v.
Commissioner of Social Security, 426 Fed.Appx. 835, 837, 2011 WL 1849319, *1 (11th Cir.
May 17, 2011) (hypothetical question posed to the VE found to be complete where the
ALJ asked the VE “to determine what work could be performed by a claimant who was
mildly limited in his ability to understand, remember, and execute complex
instructions; mildly to moderately limited in his ability to make judgments on complex
work-related decisions; mildly limited in his ability to interact appropriately with the
public, supervisors, and coworkers; and mildly limited in his ability to respond
appropriate[ly] to changes in a routine work setting.”); Jarrett v. Commissioner of Social
Security, 422 Fed.Appx. 869, 871, 2011 WL 1378108, *2 (11th Cir. Apr. 11, 2011) (“In this
case, the ALJ’s hypothetical questions adequately accounted for Jarrett’s impairment in
concentration, persistence, and pace. In one of the hypotheticals, the ALJ asked the VE
to assume an individual with Jarrett’s age, education, and work experience who could
only ‘understand, remember, [and] carry-out simple tasks and concentrate for brief
periods of time.’ By including that Jarrett had limitations in her ability to concentrate,
this hypothetical question adequately accounted for the ALJ’s finding that Jarrett had
moderate difficulties in concentration, persistence, and pace.”).
This Court is unable to find that the ALJ’s hypothetical questions fully accounted
for Salter’s moderate limitations in concentration, persistence and pace. In this regard,
14

although the ALJ’s hypotheticals posed to the VE did include the limitation of “no
complex or detailed job instructions,” (Tr. 81; compare id. with Tr. 314 (finding moderate
limitation in the ability to carry out detailed instructions)), unlike Jarrett, those
hypotheticals did not include the other significant limitation in the area of concentration
and persistence, namely, that plaintiff is moderately limited in his “ability to maintain
attention and concentration for extended periods” (Tr. 314 (emphasis added); compare
id. with Tr. 81 (this was not part of the hypothetical question)) or, as stated differently by
Dr. Eno, he can attend for two-hour periods (see Tr. 316). It is clear to the Court that the
ALJ should have included in the hypothetical question posed to the VE this other more
“directed” moderate limitation (i.e., the ability to concentrate or attend for 2-hour
periods) in concentration, persistence, and pace, not only because “time restraints” do
impact VE testimony (see Tr. 83 (“We’re only looking at a four hour workday further
complicated by the lifting and carrying restriction and the occasional reaching. We’re
looking at a profile of much less than sedentary. There’d be no work that such an
individual could either perform or sustain on a competitive basis.”)) but, more
importantly, because the ALJ in this case took pains to include in her hypothetical
questions the several limitations associated with the moderate difficulties she found to
exist with respect to social functioning (compare Tr. 27 (“In social functioning, the
claimant has moderate difficulties. Although Dr. Eno stated that the claimant has mild
limitations in the ability to maintain social functioning, he is given the benefit of the
doubt that he would have moderate limitations in social functioning. The increased
limitations are supported by the testimony regarding panic attacks and his ongoing
treatment with Dr. Pace, despite its infrequent and limited nature[.]”) and Tr. 31-32
(“[I]n light of his testimony that the panic attacks may have some residual episodes
despite his medications, the claimant may have difficulty with more than occasional
15

contact with the general public or working in crowds. Therefore, the claimant would be
limited to only occasional contact with the general public and he cannot work in
crowds.”) with Tr. 81 & 82 (the two hypotheticals posed to the VE upon which the ALJ
relies in reaching her decision of non-disability, included the following limitations: “no
working in crowds[]” and “no more than occasional contact with the public[]”)). Stated
differently, the ALJ explicitly admitted the importance of limitations in maintaining
concentration, persistence and pace insofar as VE testimony is concerned by including
in her hypothetical the specific limitation regarding “no complex or detailed job
instructions” and, therefore, should have included in the hypothetical questions posed
to the VE the additional more “directed” limitation that Salter is moderately limited in
his ability to maintain attention and concentration for extended periods. This is
particularly true since the ALJ gave no indication that the medical evidence of record
suggested that Salter’s ability to work was unaffected by this additional “concentration”
limitation, “nor did he otherwise implicitly account for this limitation in the
hypothetical.” Winschel, 631 F.3d at 1181.10
In light of the foregoing, the undersigned concludes that because the ALJ’s
relevant hypothetical questions neither explicitly nor implicitly fully accounted for
plaintiff’s moderate limitations/impairments in concentration, persistence, and pace,
the VE’s testimony is not “substantial evidence” and cannot support the ALJ’s
conclusion that Salter can perform those jobs identified by the VE. Compare Winschel,
supra, 631 F.3d at 1181 with Jones, supra, 190 F.3d at 1229 (“In order for a VE’s testimony

10

Certainly, the defendant has not directed the undersigned to any case,
regulation, social security ruling, etc., which establishes that the VE necessarily would have
understood that an individual limited to “no complex or detailed job instructions” would be
moderately limited in his ability to maintain attention and concentration for extended periods.

16

to constitute substantial evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments[/limitations].”). This is but one basis for
remand, however, as there exist another major problem with the ALJ’s decision.
B.

Plaintiff’s Additional “Combined” Argument that the Commissioner

Erred by Improperly Rejecting the Opinions of his Treating Physician, Dr. Raymond
Fletcher, Failing to Adequately Develop the Record, and Improperly Determining
that he has the Residual Functional Capacity to Perform “Light Work,” a Finding
Which is not Supported by Linkage to Either the Medical Opinion Evidence or
Reasonable Inferences Drawn from the Medical Evidence as a Whole. In addressing
this issue, the Court initially notes that a plaintiff’s RFC—which “includes physical
abilities, such as sitting, standing or walking, and mental abilities, such as the ability to
understand, remember and carry out instructions or to respond appropriately to
supervision, co-workers and work pressure[]”—“is a[n] [] 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.” Watkins v.
Commissioner of Social Security, 457 Fed. Appx. 868, 870 n.5 (11th Cir. Feb. 9, 2012) (citing
20 C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)); see also Packer v. Commissioner, Social Security
Admin., 542 Fed.Appx. 890, 891, 2013 WL 5788574, *1 (11th Cir. Oct. 29, 2013) (“An RFC
determination is an assessment, based on all relevant evidence, of a claimant’s
remaining ability to do work despite her impairments.” (citing Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997)). Here, the ALJ determined Salter’s RFC as follows:
“After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except the claimant can [only] occasionally reach overhead, climb
stairs/ramps, bend, stoop, kneel, crouch, or have contact with the general public. The
17

claimant cannot have complex or detailed job instructions but can do simple one and
two-step job instructions. The claimant can never climb ladders, ropes, or scaffolds;
work at unprotected heights or around dangerous equipment; crawl; or work in
crowds.” (Tr. 28 (emphasis in original).)
To find that an ALJ’s RFC determination is supported by substantial evidence, it
must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial
record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL 1020428,
*9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D.
Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.Ala. Feb. 14, 2013)
(“’[T]he 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.’” (quoting Salter, 2012 WL 3817791, at *3)), aff’d, 542 Fed.Appx.
890 (11th Cir. Oct. 29, 2013)11; see also Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir.
Sept. 9, 2010) (per curiam) (“The ALJ must state the grounds for his decision with clarity
to enable us to conduct meaningful review. . . . 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 [a plaintiff’s] case.” (internal
citation omitted)).12 And, of course, in order to find the ALJ’s RFC assessment

11

In affirming the ALJ, the Eleventh Circuit rejected Packer’s substantial evidence
argument, noting, she “failed to establish that her RFC assessment was not supported by
substantial evidence[]” in light of the ALJ’s consideration of her credibility and the medical
evidence. 542 Fed.Appx. at 892.
12

It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the
responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the
grounds for an RFC determination. Stated differently, “linkage” may not be manufactured
speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather,
must be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL
3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s

(Continued)
18

supported by substantial evidence, it is not necessary for the ALJ’s assessment to be
supported by the assessment of an examining or treating physician. See, e.g., Packer,
supra, 2013 WL 593497, at *3 (“[N]umerous court have upheld ALJs’ RFC
determinations notwithstanding the absence of an assessment performed by an
examining or treating physician.”); McMillian v. Astrue, 2012 WL 1565624, *4 n.5 (S.D.
Ala. May 1, 2012) (noting that decisions of this Court “in which a matter is remanded to
the Commissioner because the ALJ’s RFC determination was not supported by
substantial and tangible evidence still accurately reflect the view of this Court, but not
to the extent that such decisions are interpreted to require that substantial and tangible
evidence must—in all cases—include an RFC or PCE from a physician” (internal
punctuation altered and citation omitted)); but cf. Coleman v. Barnhart, 264 F.Supp.2d
1007 (S.D. Ala. 2003).
In establishing Salter’s RFC in this case, which means determining Salter’s
“remaining ability to do work despite h[is] impairments[,]” Packer, 542 Fed.Appx. at
891—keeping a focus on the extent of those impairments as documented by the credible
record evidence—the ALJ’s assessment fails. First, the ALJ’s RFC assessment does not

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)); Patterson v.
Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon
the reasons he gave.”).

19

include the medically-recognized moderate limitation in plaintiff’s “ability to maintain
attention and concentration for extended periods[]” (Tr. 314; see also Tr. 316 (“Claimant
can attend for at least two hour periods.”); compare id. with Tr. 28 (ALJ’s RFC assessment
does not include this limitation)) and, thus, there is no articulated linkage in this regard.
Just as important, this Court cannot find an articulated linkage between the medical
evidence of record and the “physical” portion of the ALJ’s RFC assessment due to her
improper rejection of the PCEs (and perhaps the pain assessments) completed by
plaintiff’s treating pain specialist, Dr. Raymond Fletcher, on December 14, 2009 (Tr. 331332) and September 29, 2010 (Tr. 343-344).
As previously explained, an ALJ’s RFC assessment may be supported by
substantial evidence even in the absence of an opinion by an examining medical source
about a claimant’s residual functional capacity, specifically because of the hearing
officer’s rejection of such opinion, compare Packer, supra, 2013 WL 593497, at *3
(“[N]umerous court have upheld ALJs’ RFC determinations notwithstanding the
absence of an assessment performed by an examining or treating physician.”) with Green
v. Social Security Admin., 223 Fed.Appx. 915, 923-924 (11th Cir. May 2, 2007); however,
the ALJ’s articulated reasons for rejecting a treating source’s RFC assessment must,
obviously, be supported by substantial evidence. Gilabert v. Commissioner of Social
Security, 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (“Where the ALJ articulated
specific reasons for failing to give the opinion of a treating physician controlling weight,
and those reasons are supported by substantial evidence, there is no reversible error. In
this case, therefore, the critical question is whether substantial evidence supports the
ALJ’s articulated reasons for rejecting Thebaud’s RFC.”) (citing Moore v. Barnhart, 405
F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v. Commissioner of Social Security Admin., 389
Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) (per curiam) (same). In this case, there
20

exists reversible error because the ALJ’s articulated reasons for failing to give the PCE
(and pain opinions) of Dr. Fletcher controlling weight are not supported by substantial
evidence.13
[N]o significant weight can be given to the opinion of Dr. Fletcher
expressed on either of his physical capacities evaluation forms. He has
provided pain management treatment and nothing further. Although he
identifies the claimant’s pain as significant, there is no objective findings
other than a straight leg raising test that showed the presence or extent of
the claimant’s pain. Dr. Fletcher identifies his treatment as pain
management, but he continued to report that the claimant’s pain is
uncontrolled in his physical capacities evaluation. This is inconsistent with
his unchanging medical treatment and his observations and notes. Dr.
Fletcher has routinely provided the same treatment, made the same
observations and then followed up with the claimant in the next month.
His statement that the claimant’s pain is uncontrolled is inconsistent with
the sameness of his treatment. Dr. Fletcher’s opinion is also inconsistent
with the remainder of the medical evidence regarding both pain and
functional limitations.
(Tr. 32-33 (footnote added).) It is difficult for the undersigned to make much sense of
this analysis. First, though it is decidedly true that Dr. Fletcher was plaintiff’s pain
management physician, any type of implicit suggestion that plaintiff’s treating
physician would not be qualified to complete a PCE is rank speculation and is certainly
not a “reason” supported by substantial evidence in the record. Cf. Davis v.
Commissioner of Social Security, 449 Fed.Appx. 828, 833 (11th Cir. Dec. 19, 2011) (ALJ’s
articulated reasons for disregarding a treating physician’s opinion must include “’good
reasons’”). Second, the ALJ is simply wrong in saying that “there [are] no objective
findings other than a straight leg raising test that showed the presence or extent of the
claimant’s pain.” (Tr. 32.) Indeed, a review of Dr. Fletcher’s clinic notes reflect consistent

13

It is actually unclear to this Court whether the ALJ was addressing both Dr.
Fletcher’s two PCEs and two pain assessments or whether she was simply referencing Dr.
Fletcher’s two PCEs. (See Tr. 32.) Such confusion in this regard is probably a sufficient basis
itself to require remand for further proceedings.

21

mention of “[t]ight lumber muscles[]” (Tr. 295) and “[i]ncreased tension [of] cervical &
lumbar muscles[]” (Tr. 299, 333-334, 340-342 & 379-380), as well as lower extremity
reflex exam of 2/4 and tenderness “with tight muscles along lumbar spine with local
ecchymosis[]” on intake examination conducted on June 3, 2009 (Tr. 296)14. Third, the
ALJ is also wrong in insinuating that Dr. Fletcher stated in the physical capacities
evaluation that plaintiff’s pain was “uncontrolled” and finding this alleged statement
inconsistent with the “sameness of treatment”15 given by the treating physician. The
Court has copiously reviewed Dr. Fletcher’s physical capacity evaluation forms (Tr. 332
& 343) and on neither did plaintiff’s treating physician make the statement attributed to
him by the ALJ, i.e., that plaintiff’s pain is uncontrolled; instead, those forms simply
reflect Dr. Fletcher’s diagnoses of cervical and lumbar spondylosis (Tr. 332) or simply
lumbar spondylosis (Tr. 343). Thus, the ALJ’s circular reasoning in this regard cannot
withstand scrutiny and certainly is supported by no evidence. See Davis, supra. Finally,
the ALJ’s statement that “Dr. Fletcher’s opinion is [] inconsistent with the remainder of
the medical evidence regarding both pain and functional limitations[]” might be a good
reason to reject the treating physician’s PCEs had the ALJ established what that other
pertinent medical evidence16 says about plaintiff’s pain and functional limitations;
however, she did not (see Tr. 33). And the undersigned’s review of all pertinent medical
14

This examination occurred within days of x-rays showing lumbar transverse
process fractures. (Compare id. with Tr. 294 (“There is a fracture of the transverse process of L1,
L2 and L3 on the left side and possibly L4. There is scoliosis. Degenerative changes are seen
from L2 through L5.”).)
15

This statement by the ALJ ignores the evidence of record that, on occasion, Dr.
Fletcher did adjust plaintiff’s pain medications. (See, e.g., Tr. 333-334 & 340-342.) Moreover, it
does not appear to this Court that “sameness of treatment” would be unusual for a physician
who specializes in pain management.
16

The ALJ did not order a consultative examination of plaintiff by an orthopedic
surgeon or other pain management physician.

22

evidence related to Salter’s back impairment, i.e., lumbar spondylosis—that being the
relevant impairment to which Fletcher’s PCEs were directed (compare Tr. 332 with Tr.
343)17—reveals nothing inconsistent with Fletcher’s opinions regarding pain and
functional limitations because even though Dr. Pace noted on one occasion in May of
2009, as referenced by the ALJ (Tr. 29), that plaintiff had a negative straight leg raise (Tr.
275), this examination occurred before plaintiff’s lumbar transverse process fractures
(compare id. (Pace’s exam occurred on May 28, 2009) with Tr. 294 (June 1, 2009 x-rays))
and, thereafter, when Dr. Pace made mention of plaintiff’s back impairment, he
consistently noted decreased range of motion of the back (see Tr. 369, 371 & 373).
Nothing about these findings by Dr. Pace, which the ALJ never mentions (see Tr. 28-33),
are inconsistent with Fletcher’s opinions regarding pain and functional limitations, nor
did Dr. Pace ever offer an opinion regarding plaintiff’s functional limitations (see, e.g.,
Tr. 369, 371 & 373). Thus, the ALJ’s articulated reasons for rejecting Dr. Fletcher’s PCEs
and pain assessments—that is, to the extent the ALJ’s decision can be regarded as
rejecting the treating physician’s pain assessment forms—are simply not supported by
substantial evidence and it is impossible for this Court to affirm the ALJ’s decision. See
Davis, supra, 449 Fed.Appx. at 833 (“We will not affirm an ALJ’s decision without
adequate explanation because, without such an explanation, ‘it is impossible for a
reviewing court to determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.’ The ALJ in this case did not give
adequate reasons for rejecting Mallory’s opinion.” (citation omitted)). Moreover, as a
consequence of the improper rejection of Dr. Fletcher’s opinions, the undersigned
17

And while it is true that Dr. Fletcher also treated plaintiff’s knee and shoulder
pain (see, e.g., Tr. 333-334, 340-342, 345 & 379-380), plaintiff’s back impairment was the focus of
the PCEs completed by Fletcher (Tr. 332 & 343).

23

cannot find that the ALJ has provided enough reasoning for this Court to conclude that
she considered Salter’s medical condition as a whole. See Packer, 542 Fed.Appx. at 891892.
Because substantial evidence of record does not support the Commissioner’s
determination that Salter can perform the physical and mental requirements of less than
the full range of light, and this Court cannot substitute its judgment for that of the
Commissioner, see, e.g., Bryant v. Commissioner of Social Security, 451 Fed.Appx. 838, 839
(11th Cir. Jan. 4, 2012) (“In reviewing the Commissioner’s decision, we do not ‘decide
the facts anew, reweigh the evidence, or substitute our judgment for that of the
[Commissioner].’”), the Commissioner’s fifth-step determination is due to be reversed
and remanded for further proceedings not inconsistent with this decision.18
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
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, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625,
125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 31st day of March, 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

18

The Court does note parenthetically—to the extent that it is at all helpful—that
there appears to be no evidence of record establishing plaintiff’s disability prior to his “work”
accident and fractures of the lumbar transverse at the beginning of June of 2009.

24