Grimes v. Colvin
MEMORANDUM OPINION AND ORDER entered 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 6/3/2015. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CATHY HAMILTON GRIMES,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S. C. § 1383(c)(3), seeking judicial
review of a final decision of the Commissioner of Social Security denying her claim for
supplemental security income benefits. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings
in this Court. (Compare Doc. 28 (“In accordance with provisions of 28 U.S.C. §636(c) and
Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge
conduct any and all proceedings in this case, . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”) with Doc. 29 (endorsed order referring this
matter to the undersigned for all proceedings).) Upon consideration of the
administrative record, plaintiff’s brief, and the Commissioner’s brief, it is determined
that the Commissioner’s decision denying 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. 28 (“An appeal from a judgment
entered by a magistrate judge shall be taken directly to the United States court of appeals for
Plaintiff alleges disability due to obesity, osteoarthritis, plantar warts/callosity,
chronic pain syndrome, a learning disability, and anxiety disorder. The Administrative
Law Judge (ALJ) made the following relevant findings:
The claimant has not engaged in substantial gainful activity since
March 26, 2012, the application date (20 CFR 416.971 et seq.).
The claimant has the following severe impairments: obesity,
osteoarthritis, pain disorder, learning disability, and anxiety disorder
(20 CFR 416.920(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
The severity of the claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the criteria of listing 12.06.
In making this finding, the undersigned has considered whether the
“paragraph B” criteria are satisfied. To satisfy the “paragraph B” criteria,
the mental impairments must result in at least two of the following:
marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every 4 months, each lasting for at least 2
In activities of daily living, the claimant has mild restriction. She drives
and has an active driver’s license. She has no problem with her personal
hygiene matters. She can do laundry and maintain her household chores,
prepare simple meals, and shop for the things she needs.
this judicial circuit in the same manner as an appeal from any other judgment of this district
In social functioning, the claimant has mild difficulties. She lives in an
apartment with her adult son. She has been married twice and has four
adult children. . . . She attends church regularly, goes swimming, and to
the park. She gets along well with authority figures but has been fired fr
not getting along with others.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. She watches television, can pay bills, count change,
use checkbooks or money orders, and handles a savings account. She can
drive and pay attention at church.
As for episodes of decompensation, the claimant has experienced one or
two episodes of decompensation, each of extended duration. The claimant
denied any psychiatric hospitalizations other than a single commitment to
Altapointe in 2011.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “marked” limitation and “repeated” episodes
of decompensation, each of extended duration, the “paragraph B” criteria
are not satisfied.
The undersigned has also considered whether the “paragraph C” criteria
are satisfied. In this case, the evidence fails to establish the presence of the
“paragraph C” criteria. The “paragraph C” criteria of 12.06 is not met
because there is no medical evidence showing the claimant has a complete
inability to function independently outside the home.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listing in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform a
reduced level of medium work as defined in 20 CFR 416.967(c). She can
understand, remember, and carry out short simple instructions on an
unlimited basis and detailed instructions occasionally. She has  no
[social] interaction limitations or adaptation limitations. She is
precluded from climbing ladders, ropes, or scaffolds. She is precluded
from crawling. She can occasionally stoop, kneel, or crouch. She can
continuously reach, handle, finger, or feel.
The claimant alleges that she cannot work because she is in pain all the
time. She testified that she cannot stand for long because her feet hurt and
her back hurts. She testified that her hands hurt and her arm goes numb.
She testified that she was committed to Altapointe because she got into an
altercation with someone else at a homeless shelter.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause some symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this
The claimant has the severe physical impairments of obesity and
osteoarthritis. Both impairments are accommodated in her residual
functional capacity in that she is precluded from all very heavy and heavy
work in the national economy and she is precluded from climbing
ladders, ropes, or scaffolds and from crawling. She can occasionally stoop,
kneel, or crouch. She can continuously reach, handle, finger, or feel.
The claimant testified that she is 5’2” and currently weighs 196 pounds.
Her medical records from Mobile County Health Department from May 6,
2010, state that she was five feet tall and weighed 188 pounds with a body
mass index (BMI) of 36.8. She was down from 196 pounds on March 22,
2010. In March of 2012, she was reported to be 5’0” and weigh 172 pounds
with a BMI of 33.66. The last half of 2012 and the first part of 2013, the
claimant’s weight ranged from 186 to 201 pounds. The claimant has
consistently been shown to be obese; however, no surgical intervention,
diet medication, or other treatments have been prescribed or
recommended. Even so, her obesity is accommodated in her residual
The claimant has the severe impairment of osteoarthritis; however,
medical treatment notes from Tri-County Medical Center [i]n February,
March, and July of 2012 state that she has a normal range of motion, no
joint tenderness, no joint swelling, normal straight leg raises, and no calf
tenderness. She was diagnosed with osteoarthritis in 2010 due to pain in
her knee joints. Range of motion testing performed in January, February,
March, June and July of 2011 and every month from August of 2012
through May of 2013 showed the claimant to have normal range of motion
in the knees and the other joints, no swelling and a normal gait. X-rays
done on July 28, 2011 showed no acute abnormality in the knees, no
significant degenerative disc disease, minimal degenerative disease in the
right hand and a chronic calcification in the left wrist joint. Nonetheless,
the claimant’s osteoarthritis is accommodated in the claimant’s residual
functional capacity as noted above.
On April 3, 2013, Alan Sherman, M.D., performed a consultative medical
exam and review of the claimant. Dr. Sherman performed a clinical exam
that showed her fine motor movement normal bilaterally, normal range of
motion in the wrists, elbows and shoulders, bilaterally with no complaints
of pain, and upper extremity strength of 5 of 5. She also has had normal
range of motion of her ankles, knees and hips, bilaterally, straight leg raise
was negative and lower extremity strength was 5 of 5. The claimant
denied any back pain whatsoever during the exam and range of motion
testing done on the back proved to be completely normal with no altered
gait or speed. Dr. Sherman opined that the claimant has “few physical
limitations that would preclude gainful employment.[“] Great weight is
assigned to Dr. Sherman’s physical opinion. He is very credible as a nontreating source. His opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is consistent with the
other substantial evidence in the claimant’s case record and the claimant’s
The claimant has the severe mental impairments of anxiety, chronic pain
syndrome, and learning disability. Her severe mental impairments are
accommodated in her residual functional capacity in that she is precluded
from all very heavy and heavy work in the national economy and she is
expected to only understand, remember, and carry out short simple
instructions on an unlimited basis and detailed instructions occasionally.
The claimant was involved in an altercation at a homeless shelter on
March 25, 2012. She was later committed to Altapointe Health Systems
due to psychiatric problems based upon a petition filed in Probate Court.
Her initial diagnoses at Altapointe were psychosis and anxiety disorder.
She reported that she had never been admitted to any psychiatric
institution before though she had been on anti-depressants sometime in
the distant past. She was admitted to Baypointe Hospital for monitoring
due to her unpredictable behavior and placed on Klonopin for treatment.
The claimant was consistently treated at Altapointe Health Systems from
April of 2012 until August of 2012. After two months of treatment, on May
31, 2012, her memory and concentration were found to be unimpaired and
no symptoms of anxiety were noted throughout the claimant’s remaining
treatment at Altapointe. The claimant reported no symptoms of
depression or any other problems. In her consultative medical exam, on
August 20, 2012, the claimant reported that her only mental problem was
a history of anxiety.
In January of 2012, the claimant was prescribed Lortab for treatment of
chronic pain and Xanax for anxiety treatment. She complains regularly of
pain and is generally prescribed Lortab for treatment though no
diagnostic testing has shown any basis for the pain. In her consultative
medical exam, Dr. Sherman diagnosed the claimant with chronic pain
The claimant was seen at Southwest Alabama Behavioral Health Care
Systems on November 15, 2012 for psychiatric treatment and
recommendations were made for various evaluations. Apparently, she did
not follow through with the recommendations. She next reported to
Southwest Alabama Behavioral Health Care Systems on February 26, 2013
and reported that she had not been on her medication in three or four
months and would like to get back on them because they help her to be
“more calm”. She was evaluated by John Cranton, M.D., at the visit. Based
on her evaluation, Dr. Cranton opined that the claimant appears to have
anxiety issues and a learning disability. He noted that she dropped out of
school in the seventh grade and had difficulty with the computational
portions of his clinical evaluation. He further opined that she did not have
any signs of depression, is probably not schizophrenic, and does not
appear to have any adverse reaction to the medications previously
prescribed. Dr. Cranton prescribed Haldol monthly; Cogentin, and
Trazadone and recommended psychological testing. Significant weight is
assigned to the opinion of Dr. Cranton. As a treating physician, his
opinion is very credible. His opinion is consistent with the claimant’s
treatment history, the diagnostic testing contained in the record[,] and
with the other substantial evidence in the record.
The claimant was given a Multiphasic Personality Inventory-Second
Addition (MMPI-2) on May 31, 2013 at Southwest Alabama Behavioral
Health Care Systems. The results of the exam proved to be invalid. The
psychologist that administered the exam, Jill Hall, Ph.D., noted that the
claimant’s results may have been invalid due to an inability to understand
the questions or in an attempt to over or under report her symptoms. No
weight is assigned to the test or speculation made by Dr. Hall due to the
clinically invalid results of the administered test; however, the claimant’s
credibility is not enhanced by producing the invalid test.
The claimant’s credibility regarding her mental impairments is greatly
diminished by her lack of treatment and lack of following through with
recommendations made by her treating physicians. She was without any
medication at all for several months and only showed signs of anxiety
when she finally reappeared for treatment. As noted above, she even
reported only anxiety as a mental health issue in her medical evaluation.
The claimant’s mental impairments are fully accommodated in her
residual functional capacity as stated above.
The claimant had a consultative mental evaluation on October 9, 2012
performed by Robert DeFrancisco, Ph.D. Upon clinical evaluation, Dr.
DeFrancisco opined that the claimant has a pain-disorder, substanceabuse in remission, probably borderline to average intelligence and a
learning disability. He opined that she can understand, remember and
carry out instructions that are within her ability and respond adequately
to coworkers. Five months later, on March 21, 2013, the claimant hired Dr.
DeFrancisco to reevaluate her. In the reevaluation, Dr. DeFrancisco
changes his diagnoses completely. He opined that she has a personality
disorder with self-defeating tendencies and an anxiety disorder along
with major depression. He opined that she is in need of intense
psychotherapy and pharmacotherapy and has marked restrictions in her
ability to function. No weight is assigned to the opinions expressed by
DeFrancisco. The opinions are inconsistent with the claimant’s treatment
history, her own reports, the other clinical testing in the record and even
internally inconsistent. Dr. DeFrancisco noted that the claimant has low
normal concentration in the narrative portion of the evaluation then
indicated that she had a marked restriction in the form for her mental
residual functional capacity. He indicated in the form that she has marked
history of decompensation in work setting but no examples or history of
decompensation in a work setting are contained in the record or in his
narrative history. The only episode of decompensation in the record is the
commitment to Baypointe in March of 2012 after the altercation at the
homeless shelter. Dr. DeFrancisco gave the claimant a marked restriction
of activities of daily living; however, the claimant wrote in her Function
Report and the claimant’s mother wrote in her function report that the
claimant has almost no restrictions in her activities of daily living. The
marked restriction[s] in social functioning [are] also internally inconsistent
because a mere moderate restriction was placed on the claimant’s ability
[to] respond appropriately to supervision.
In sum, the above residual functional capacity assessment is supported by
the objective medical evidence, the medical opinions when afforded
appropriate weight, and the claimant’s subjective complaints during the
relevant period when taken in proper context. In view of all of the factors
discussed above, the limitations on the claimant’s capacities that were
described earlier in this decision are considered warranted, but no greater
or additional limitations are justified.
The claimant is capable of performing past relevant work as a
cashier. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity (20
The position of cashier is described in the Dictionary of Occupational Titles
at 211.462-010. The job is performed at the light exertional level and is
unskilled. It requires frequent reaching, handling, fingering, talking,
hearing, and near acuity. She performed the position beyond the level
required to reach substantial gainful activity at various places during her
career for more than enough time to learn the job.
In comparing the claimant’s residual functional capacity with the physical
and mental demands of this work, the undersigned finds that the claimant
is able to perform it as actually and generally performed. She is capable of
performing light work as she is limited only to the medium exertional
level. She can understand, remember, and carry out short simple
instructions on an unlimited basis and detailed instructions occasionally.
She has no social interaction limitations or adaptation limitations. She can
continually reach, handle, finger, or feel. The only additional limitations
that she has are preclusion from climbing ladders, ropes, or scaffolds, and
crawling and being limited to only occasionally stooping, kneeling, or
crouching. These precluded activities are not requirements of the position
of cashier as described in the Dictionary of Occupational Titles.
The claimant has not been under a disability, as defined in the
Social Security Act, since March 26, 2012, the date the application was
filed (20 CFR 416.920(f)).
(Tr. 13, 14-15, 15, 15-16, 16 & 16-20 (internal citations omitted; 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.
A claimant is entitled to an award of supplemental security income benefits
when she is unable to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
last for a continuous period of not less than 12 months. See 20 C.F.R. § 416.905(a) (2014).
In determining whether a claimant has met her burden of proving disability, the
Commissioner follows a five-step sequential evaluation process. See 20 C.F.R. § 416.920.
At step one, if a claimant is performing substantial gainful activity, she is not disabled.
20 C.F.R. § 416.920(b). At the second step, if a claimant does not have an impairment or
combination of impairments that significantly limits her physical or mental ability to do
basic work activities, she is not disabled. 20 C.F.R. § 416.920(c). At step three, if a
claimant proves that her impairments meet or medically equal one of the listed
impairments set forth in Appendix 1 to Subpart P of Part 404, the claimant will be
considered disabled without consideration of age, education and work experience. 20
C.F.R. § 416.920(d). At the fourth step, if the claimant is unable to prove the existence of
a listed impairment, she must prove that her physical and/or mental impairments
prevent her from performing her past relevant work. 20 C.F.R. § 416.920(f). And at the
fifth step, the Commissioner must consider the claimant’s residual functional capacity,
age, education, and past work experience to determine whether the claimant can
perform other work besides past relevant work. 20 C.F.R. § 416.920(g). Plaintiff bears
the burden of proof through the first four steps of the sequential evaluation process, see
Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987),
and while the burden of proof shifts to the Commissioner at the fifth step of the process
to establish other jobs existing in substantial numbers in the national economy that the
claimant can perform,2 the ultimate burden of proving disability never shifts from the
plaintiff, see, e.g., Green v. Social Security Administration, 223 Fed.Appx. 915, 923 (11th Cir.
May 2, 2007) (“If a claimant proves that she is unable to perform her past relevant work,
in the fifth step, ‘the burden shifts to the Commissioner to determine if there is other
work available in significant numbers in the national economy that the claimant is able
to perform.’ . . . Should the Commissioner ‘demonstrate that there are jobs the claimant
can perform, the claimant must prove she is unable to perform those jobs in order to be
found disabled.’”). 3
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she is capable of performing her
past relevant work as a cashier, is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla and means such relevant evidence as a
See, e.g., McManus v. Barnhart, 2004 WL 3316303, *2 (M.D. Fla. Dec. 14, 2004)
(“The burden  temporarily shifts to the Commissioner to demonstrate that ‘other work’ which
the claimant can perform currently exists in the national economy.”).
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
reasonable mind might accept as adequate to support a conclusion.
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).4 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 Social Security, 363 F.3d
1155, 1158-59 (11th Cir. 2004).
Although the plaintiff’s brief is a bit disjointed (see Doc. 19), the Court considers
Grimes to be offering two reasons why the Commissioner’s decision to deny her
supplemental security income benefits is in error (i.e., not supported by substantial
evidence): (1) the ALJ accorded improper weight to the various doctors’
evaluations/examinations contained in the record and/or erred in failing to obtain a
consultative psychological examination in light of his rejection of the evaluations of Dr.
Robert DeFrancisco; and (2) the ALJ’s residual functional capacity determination and
finding that claimant can perform her past relevant work as a cashier is not supported
by substantial evidence because of the ALJ’s failure to consider relevant evidence and
testimony of record.
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).
RFC Determination and Plaintiff’s Ability to Perform her Past Relevant
Work as a Cashier. Initially, the Court notes that the responsibility for making the
residual functional capacity determination rests with the ALJ. Compare 20 C.F.R. §
416.946(c) (“If your case is at the administrative law judge hearing level . . ., the
administrative law judge . . . is responsible for assessing your residual functional
capacity.”) with, e.g., Packer v. Commissioner, Social Security Admin., 542 Fed. Appx. 890,
891-892 (11th Cir. Oct. 29, 2013) (per curiam) (“An RFC determination is an assessment,
based on all relevant evidence, of a claimant’s remaining ability to do work despite her
impairments. There is no rigid requirement that the ALJ specifically refer to every piece
of evidence, so long as the ALJ’s decision is not a broad rejection, i.e., where the ALJ
does not provide enough reasoning for a reviewing court to conclude that the ALJ
considered the claimant’s medical condition as a whole.” (internal citation omitted)). 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)). And, of course, it is clear that the ALJ’s RFC determination is as important at the
fourth step of the sequential evaluation process as it is at the fifth. See Phillips v.
Barnhart, 357 F.3d 1232, 1238-1239 (11th Cir. 2004) (“At the fourth step, the ALJ must
assess: (1) the claimant’s residual functional capacity ; and (2) the claimant’s ability to
return to [his] past relevant work. As for the claimant’s RFC, the regulations define RFC
as that which an individual is still able to do despite the limitations caused by his or her
impairments. Moreover, the ALJ will assess and make a finding about the claimant’s
residual functional capacity based on all the relevant medical and other evidence in the
case. Furthermore, the RFC determination is used both to determine whether the
claimant: (1) can return to [his] past relevant work under the fourth step; and (2) can
adjust to other work under the fifth step . . . . If the claimant can return to [his] past
relevant work, the ALJ will conclude that the claimant is not disabled. If the claimant
cannot return to [his] past relevant work, the ALJ moves on to step 5.” (internal
citations, quotation marks, and brackets omitted; brackets added)). In this case, the ALJ
made the following RFC determination: “After careful consideration of the entire
record, the undersigned finds that the claimant has the residual functional capacity to
perform a reduced level of medium work as defined in 20 CFR 416.967(c). She can
understand, remember, and carry out short simple instructions on an unlimited basis
and detailed instructions occasionally. She has  no [social] interaction limitations or
adaptation limitations. She is precluded from climbing ladders, ropes, or scaffolds.
She is precluded from crawling. She can occasionally stoop, kneel, or crouch. She can
continuously reach, handle, finger, or feel.” (Tr. 15-16 (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.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013)5; 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)).6
In this case, the undersigned cannot find that the ALJ has provided the required
“linkage” between the record evidence and his RFC determination necessary to
facilitate this Court’s meaningful review of his decision. The ALJ specifically
determined that plaintiff is capable of performing a “reduced range of medium work
as defined in 20 CFR 416.967(c).” (Tr. 15.) That section of the Commissioner’s
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. Id. at 892.
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
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. Appx. 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.”).
regulations defines medium work as requiring “lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25 pounds[,]” id. and it
is clear that medium work requires prolonged standing, see SSR 83-10 (“In most
medium jobs, being on one’s feet for most of the workday is critical.”). Although the
ALJ notes in a conclusory manner that his RFC determination accommodates plaintiff’s
severe physical impairments “of obesity and osteoarthritis”(see Tr. 16), this Court
cannot find substantial evidence in the record supporting that RFC determination in
light of the ALJ’s wholesale failure to mention, much less consider, the evidence in the
record regarding the morbidly obese plaintiff’s numerous plantar warts on both feet,
including one doctor’s repeated suggestion that she was in need of surgery (see, e.g., Tr.
291-305, 312, 351-352, 355 & 368), and plaintiff’s testimony that the warts on her feet are
a big and painful problem and make it impossible for her to stand for prolonged
periods (see Tr. 30-31, 33-34 & 41-42). Since the ALJ totally ignored the evidence of
record relative to plaintiff’s plantar warts, as well as her testimony regarding that
condition (whether plantar “feet” or plantar warts), he obviously failed to set forth
explicit and adequate reasons for questioning Grimes’ testimony that she cannot stand
for prolonged periods because of her plantar warts. Accordingly, the Court must accept
plaintiff’s testimony in this regard as true, see Foote v. Chater, 67 F.3d 1553, 1561 (11th
Cir. 1995) (“Failure to articulate the reasons for discrediting subjective pain testimony
requires, as a matter of law, that the testimony be accepted as true.”), and since the
truth of such testimony cannot be reconciled with the ability to perform the physical
requirements of medium work,7 this case need be remanded for further proceedings not
inconsistent with this decision.8
Although the ALJ noted in a conclusory manner that “no diagnostic testing has
On remand, the ALJ should also more specifically explain how plaintiff’s mental
impairments still allow her to “occasionally” understand, remember, and carry out
detailed instructions (see Tr. 15), given the evidence or record relied upon by the ALJ in
denying the claimant benefit (compare, e.g., Tr. 373 (“She is adequately oriented, but she
does appear to have difficulty with recall. She was able to remember that I am a
psychiatrist but she could not recall my name even though I wrote it down on a piece of
paper. Her intellectual functioning appears to be impaired. She subtracted serials seven
very slowly. She could not multiply. She was not able to abstract proverbs.”); and Tr.
329 (memory and concentration were noted to be impaired) with Tr. 212 (mother’s
report that plaintiff “does not take instructions well”)).
Because substantial evidence of record fails to support the Commissioner’s
determination that Grimes can perform the physical and mental requirements of
medium work as identified by the ALJ (see Tr. 15-16), the Commissioner’s fourth-step
determination is due to be reversed and remanded for further consideration not
inconsistent with this decision. See Land v. Commissioner of Social Security, 494 Fed.Appx.
shown any basis for the pain” plaintiff complained of during the hearing (see Tr. 18), this
Court simply observes that plaintiff’s plantar warts are patently apparent and no physician who
examined plaintiff has given the slightest indication that those warts would not be painful (to
stand or walk on) or cause pain (see, e.g., Tr. 317).
The undersigned recognizes that when Dr. Alan Sherman examined plaintiff on
August 20, 2012, he noted that “[g]iven ROM there are few physical limitations that would
preclude gainful employment.” (Tr. 317.) However, this comment has no impact on plaintiff’s
testimony regarding her feet and plantar warts and, in truth, the undersigned questions
whether the “few physical limitations” to which Dr. Sherman made implicit reference relate to
plaintiff’s plantar warts. Certainly, Dr. Sherman did not question that plaintiff was being
treated for plantar warts (see Tr. 315 (“She also is currently being treated for bilateral foot
plantar warts which she states increases pain.”)) or that the warts are painful (compare id. with
Tr. 317 (“CHRONIC PAIN SYNDROME PER MEDICAL RECORDS”)). And since Dr. Sherman
makes no direct notation that he examined the warts and found that they would not cause any
physical limitations, Dr. Sherman’s examination notes simply are not contradictory of plaintiff’s
testimony that her plantar warts prohibit her from engaging in prolonged standing.
47, 49 & 50 (11th Cir. Oct. 26, 2012) (“[S]tep four assesses the claimant’s RFC to
determine whether the claimant is capable of performing ‘past relevant work.’ . . . A
claimant’s RFC takes into account both physical and mental limitations. . . . Because
more than a scintilla of evidence supported the ALJ’s RFC assessment here, we will not
second-guess the Commissioner’s determination.”).
Weight Afforded the Opinions of the Various Examining Physicians.
Because this case is due to be remanded for further proceedings for those reasons
previously identified, this Court has no reason to address this assignment of error at
any length. However, the undersigned would simply note that given the objections
raised by the plaintiff, reconsideration of whether to obtain a detailed psychological
evaluation of the claimant on remand may be appropriate.
In light of the foregoing, 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
DONE and ORDERED this the 3rd day of June, 2015.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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