McCormick v. Colvin et al
MEMORANDUM OPINION AND ORDER entered. 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) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 8/6/2015. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
OLIVIA RAYE MCCORMICK,
CAROLYN W. COLVIN,
Acting Commissioner of Social
CIVIL ACTION NO.: 14-0399-C
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405 (g) and 42 U.S.C. § 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security denying her
claim for Social Security disability and 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. (Docs. 23 & 24 (“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.”).) 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
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 23 & 24 (“An appeal from a
Plaintiff alleges disability due to epilepsy, migraine headaches, anxiety, seizures, and
The Administrative Law Judge (the “ALJ”) made the following relevant
The claimant meets the insured status requirements of the Social
Security Act through March 1, 2009.
The claimant has not engaged in substantial gainful activity since
January 30, 2008, the application date.
The claimant has the following severe impairments: seizures, pseudo
seizures, migraines, and anxiety.
The Administrative Law Judge finds that the claimant has impairments that are
“severe” within the meaning of the regulations and those impairments
significantly limit the claimant’s ability to perform basic work activities.
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 claimant’s impairments have been considered individually and in
combination, and the impairments do not meet or equal any of the listings. The
claimant has not been presented any medical findings, arising from the application
of medically acceptable clinical or laboratory diagnostic techniques that prove
that the claimant met or equaled a listing for the duration period. There are no
acceptable medical sources that treated [her], examined [her] or who examined
[her] records, who have opined that [her] condition meets or medically equals a
The severity of the claimant’s mental impairment does 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 impairment 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
judgment entered by a magistrate judge shall be taken directly to the United States court of
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
episodes within 1 year, or an average of once every 4 months, each lasting for at
least 2 weeks.
In activities of daily
reported she does the
cares for her dog and
reported she cares for
house every day.
living, the claimant has mild restriction. The claimant
laundry, cooks, washes dishes and dusts. She stated she
watches her friend’s children when she feels like it. She
her personal needs. She drives a car and goes out of the
In social functioning, the claimant has moderate difficulties. The claimant
watches her friend’s children when she feels like it. She shops in stores. She
visits with friends and family.
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant reported she can pay bills, count change and handle a
checking and savings account. She stated she likes to make photo albums.
As for episodes of decompensation, the claimant has experienced no episodes
decompensation which have been of extended duration. No problems have been
reported or alleged in this area of functioning.
Because the claimant’s mental impairment does 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
The undersigned has also considered whether the “paragraph C” criteria are
satisfied. In this case, the evidence fails to establish the presence of “paragraph
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 listings 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 full range
of work at all exertional levels but with the following nonexertional
limitations; she should avoid work at unprotected heights and with
dangerous machinery. She can perform simple tasks. She can follow short,
simple instructions. She should have occasional contact with the general
In making this finding, the undersigned has considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with the
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. The undersigned has 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, the undersigned 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
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, the undersigned 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, the undersigned must make a
finding on the credibility of the statements based on a consideration of the entire
After careful consideration of the evidence, the undersigned finds 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 entirely
credible for the reasons explained in this decision.
In terms of the claimant’s alleged seizures, the Administrative Law Judge assigns
determinative weight to the opinion of John Yager, M.D., who examined the
claimant on October 26, 2012. The Administrative Law Judge notes that Dr.
Yager’s examination was essentially normal. Neurological exam revealed the
visual fields were full to confrontation. Extraocular muscles were intact. The
face was symmetric. The tongue protruded in the midline.
The palate elevated symmetrically. Dr. Yager noted the claimant flinched away
from the tuning fork when he tried to test her. DTRs were 2+ and equal. The
claimant could do finger-to-nose quite well. Finger opposition was well-done.
Grip strengths were equal and biceps, triceps ad deltoid strengths were equal. The
Administrative Law Judge specifically notes that the claimant stated she did not
take any medications because it causes her face to twitch and she did not like that.
The Administrative Law Judge finds it extremely significant that Dr. Yager found
the claimant seemed to be embellishing her problems. He states she was not sure
that she really has a full seizure disorder. He did note that if it was found that she
did indeed have a seizure disorder, she should not work at unprotected heights,
drive or operate machinery. He further felt the claimant’s problems may be more
psychiatric and she should be evaluated from that stand point.
Supporting the Administrative Law Judge’s finding that the claimant can perform
work activity is the report from Peter Bertucci, M.D., the State Agency physician.
The Administrative Law Judge finds it extremely significant that Dr. Bertucci
found the claimant had no physical limitations. He only found that she should
avoid concentrated exposure to hazards.
The Administrative Law Judge recognizes that Dr. Villarreal completed a Medical
Source Statement on July 10, 2012, which she found the claimant can
occasionally lift/carry up to 10 pounds. She found the claimant can sit, stand and
walk for 30 minutes at a time and for one hour during an 8-hour day. She found
the claimant would need a job that permits shifting positions at will. She stated
the claimant’s condition frequently interferes with the attention and concentration
required to perform simple work-related tasks. She further found the claimant is
very nervous and unable to handle fine manipulation. The Administrative Law
Judge notes that Dr. Villarreal completed a prior residual functional capacity on
which she indicated the claimant is unable to lift any amount of weight. She
found the claimant can sit for 60 minutes at a time and stand/walk for 5 minutes at
a time. She indicated the claimant could sit for one hour during an 8-hour day
and never stand/walk. She also completed a Seizure Questionnaire on which she
found the claimant is very restricted. The Administrative Law Judge does not
give any weight to those residual functional capacity forms because they not only
conflict with Dr. Villarreal’s own records but with the remainder of the evidence.
The Administrative Law Judge specifically notes that there is no evidence that the
claimant has received regular and ongoing treatment for her alleged complaints.
In addition, no tests have been administered that have diagnosed the claimant with
a seizure disorder. Dr. Villarreal also completed a Mental Capacity Assessment
questionnaire on which she indicated the claimant has marked limitations in her
ability to understand and remember; sustain concentration and persistence and in
her ability to interact socially. The Administrative Law Judge does not give any
weight to that opinion because i[t] totally conflicts with the remainder of the
medical evidence. The claimant has exhibited the capacity to attend college and
sustain work activity and there is no evidence to indicate that ability no longer
exists. The Administrative Law Judge notes that Dr. Villarreal stated the claimant
has poor emotional control and is at times irrational. Again, the Administrative
Law Judge notes that no evidence has been submitted to indicate the claimant is
as disabled as Dr. Villarreal stated. In fact, the majority of Dr. Villarreal’s
records indicate the claimant has only been treated for various complaints,
including respiratory problems, nasal congestion, sore throat, etc.
The Administrative Law Judge finds that the records do not support marked to
extreme limitations in all categories, and actually indicate an impairment with a
Global Assessment of Functioning (GAF) of 60. The Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (DSM-IV) describes GAF in the
range of 51-60 as an indication of moderate symptoms or moderate difficulty in
social, occupational, or school functioning. Furthermore, [Dr.] Villarreal’s
opinion is not supported by her own treatment records. There has been no
evidence to support marked to extremes in all categories.
With regard to the alleged anxiety, the Administrative Law Judge considered the
records from Southwest Alabama Behavioral Health Center. The evidence
reveals the claimant has been treated with counseling and medication. The
Administrative Law Judge specifically notes that the treatment notes indicate the
claimant has been under stress because of her inability to pay her bills and
grieving over the death of her father. The Administrative Law Judge finds it
extremely significant that Dr. Cranton, the treating psychiatrist, found her Global
Assessment of Functioning (GAF) was 60, which indicates only moderate
symptoms or moderate difficulty in social, occupational or school functioning.
In sum, the above residual functional capacity assessment is supported by the
claimant’s own statements. The Administrative Law Judge notes that the
claimant stated she  cares [for] her friend’s children when she feels like it. She
cares for her own dog, does the laundry and other household chores. She watches
TV. She is able to care for her personal needs. She stated she drives and shops in
stores. She is able to pay bills, count change and handle a checking and savings
account. She does homework given to her by the therapist and visits with friends.
Based on the vocational expert testimony, the claimant is unable to
perform any past relevant work.
The claimant has past relevant work as a loan clerk and cashier. Accordingly, the
claimant is unable to perform past relevant work.
The claimant was born on October 17, 1978, and was 29 years old,
which is defined as a younger individual age 18-49, on the alleged disability
The claimant has at least a high school education and is able to
communicate in English.
Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 404.1568 and 416.968).
Based on vocational expert testimony and 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.
In determining whether a successful adjustment to other work can be made, the
undersigned must consider the claimant’s residual functional capacity, age,
education, and work experience in conjunction with the Medical-Vocational
Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform
all or substantially all of the exertional demands at a given level of exertion, the
medical-vocational rules direct a conclusion of either “disabled” or “not disabled”
depending upon the claimant’s specific vocational profile. When the claimant
cannot perform substantially all of the exertional demands of work at a given
level of exertion and/or has nonexetional limitations, the medical-vocational rules
are used as a framework for decision-making unless there is a rule that directs a
conclusion of “disabled” without considering the additional exertional and/or
nonexertional limitations. If the claimant has solely nonexertional limitations,
section 204.00 in the Medical-Vocational Guidelines provides a framework for
The claimant’s ability to perform work at all exertional levels has been
compromised by nonexertional limitations. To determine the extent to which
these limitations erode the occupational base of unskilled work at all exertional
levels, the Administrative Law Judge 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 food prep worker of which
there are 775,140 jobs in the national economy and 9.760 in the state; dishwasher
of which there are 509,550 jobs in the national economy and 36,030 in the state;
and laundry worker of which there are 887,890 jobs in the national economy and
11,308 in the state.
Pursuant to SSR 00-4p, the undersigned has determined that 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, the undersigned concludes 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 section 204.00
in the Medical-Vocational Guidelines.
The claimant has not been under a disability, as defined in the Social
Security Act, from January 30, 2008, through the date of this decision.
(Doc. 15, Tr. 163-169) (internal citations omitted; emphasis in original). The Appeals Council
affirmed the ALJ’s decision, (Id., Tr. 5-8), and, thus, the hearing decision became the final
decision of the Commissioner of Social Security.
A claimant is entitled to an award of Social Security disability and 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 perform 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 medical 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
The task for the Magistrate Judge is to determine whether the Commissioner’s decision to
deny claimant benefits, on the basis that she can perform those jobs identified by the vocational
expert (“VE”), is supported by substantial evidence. The ALJ found that she could perform a
full range of work at all exertional levels but with the following nonexertional limitations: she
should avoid work at unprotected heights and with dangerous machinery; she can perform simple
tasks; she can follow short, simple instructions; she should have occasional contact with the
general public. Given this RFC, the VE determined that she could perform the work required of
a food prep worker of which there are 775,140 jobs in the national economy and 9.760 in the
state; a dishwasher of which there are 509,550 jobs in the national economy and 36,030 in the
state; and a laundry worker of which there are 887,890 jobs in the national economy and 11,308
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.
in the state. 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).4 Courts are precluded, however, from “deciding the facts anew or reweighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 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. (quoting Crawford v. Commissioner
of Social Security, 363 F.3d 1155, 1158-59 (11th Cir. 2004).
The Court considers Plaintiff Olivia Raye McCormick (“Plaintiff” or “McCormick”) to
be offering three reasons why the Commissioner’s decision to deny her Social Security disability
and supplemental security income benefits is in error (i.e., not supported by substantial
evaluations/examinations contained in the record and/or erred in failing to obtain further
consultative examinations in light of her rejection of the evaluations of Dr. Marie Villarreal (“Dr.
Villarreal”) and Dr. Roman Kesler (“Dr. Kesler”), as well as the recommendation of Dr. John
Yager (“Dr. Yager”) in his consultative examination; (2) the ALJ’s determination and finding
that claimant has the residual functional capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations: she should avoid work at unprotected
heights and with dangerous machinery; she can perform simple tasks; she can follow short,
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).
simple instructions; and she should have occasional contact with the general public, is not
supported by substantial evidence because of the ALJ’s failure to consider relevant evidence and
testimony of record, the ALJ’s failure to properly document the basis for giving no credibility to
the opinions and reports of McCormick’s treating physicians, and the ALJ’s failure to address
the opinions and reports of McCormick’s specialist treating physician; and (3) the Appeals
Council’s failure, after being notified that McCormick was diagnosed with advanced cancer two
months after the ALJ’s decision, to remand and require the ALJ to determine when the cancer
first began affecting McCormick’s ability to work. In this instance, the undersigned need not
consider plaintiff’s first and third assignments of error inasmuch as it is clear that the ALJ’s RFC
determination is not supported by substantial evidence
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, 891-92 (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)).
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.”
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, 1238-39 (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 to both 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 moves on to step 5.
Id. (internal citations, quotation marks, and brackets omitted).
In this case, the ALJ made the
following RFC determination:
After careful consideration of the entire record, the
undersigned finds that that claimant has the residual
functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: she should avoid work at all unprotected heights
and with dangerous machinery. She can perform simple tasks.
She can follow short, simple instructions. She should have
occasional contact with the general public.
(Tr. 158-169 (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 being reached.” Ricks v. Astrue, 2012 WL 1020428, *9 (M.D. Fla. March
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); 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)).5
In this case, the undersigned cannot find that the ALJ has provided the required “linkage”
between the record evidence and her RFC determination necessary to facilitate this Court’s
meaningful review of her decision. The ALJ recognized that Dr. Villarreal completed a Medical
Source Statement, a prior residual functional capacity, a Seizure Questionnaire, and a Mental
Capacity Assessment Questionnaire, all of which were very restrictive in what McCormick could
do, both physically and mentally. However, despite voluminous medical records from Dr.
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; the 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.”).
Villarreal from 2009 through 2011, all of which noted in whole or in part, that Dr. Villarreal
diagnosed McCormick with epilepsy, migraine headaches, anxiety, seizures, pseudo seizures,
pain disorder, PTSD, personality disorder, and back pain, the ALJ made the conclusory findings
that the above-referenced forms were not supported by Dr. Villarreal’s records. Thus, the ALJ
gave Dr. Villarreal’s completed questionnaires and statements no credibility. It is clear that the
ALJ failed to provide an adequate basis as to why Dr. Villarreal’s records did not support her
medical and mental restrictions. Moreover, Dr. Villarreal’s records do, in fact, address all of the
medical bases for her restrictions. The ALJ’s RFC assessment fails to state specific evidence in
Dr. Villarreal’s records bearing upon McCormick’s ability to perform the physical, mental,
sensory and other requirements of work. In short, the ALJ’s decision does not state with
sufficient clarity the basis for giving Dr. Villarreal’s opinions and statements no credibility.
Additionally, Dr. Kesler, a neurosurgeon to whom Dr. Villarreal referred McCormick for
treatment of her seizures, completed a seizure questionnaire and other forms that were very
restrictive as to what claimant could do as a result of her seizures. Dr. Kesler also diagnosed
McCormick with seizures and pseudo seizures. The ALJ, however, failed to address Dr. Kesler’s
records and opinions, despite the fact that Dr. Kesler was a treating specialist. The failure to
address Dr. Kesler’s questionnaire and treatment is a fatal error. See Nyberg v. Comm'r of Soc.
Sec., 179 F. App'x 589, 590-91 (11th Cir. 2006) ("[T]he ALJ 'must specify what weight is given
to a treating physician's opinion and any reason for giving it no weight, and failure to do so is
reversible error.'" (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986))); id.
("[W]e cannot say that the failure to address [the treating physician's] opinion was harmless
without re-weighing the evidence and engaging in conjecture that invades the province of the
ALJ."); Green v. Colvin, No. CA 13-0368-WS-C, 2014 WL 936415 (S.D. Ala. Mar. 11, 2014)
(finding reversible error where the ALJ failed to address the opinion of the Plaintiff's treating
physician). The evidence supports a finding that Dr. Kesler be deemed a treating physician
because he had an ongoing relationship with the Plaintiff whereby he saw her several times to
treat her for her seizure disorder, (Tr. 615-19, 841-42). See Nyberg, 179 F. App'x at 591 ("[A]
treating physician is one who not only provides (or has provided) the claimant with medical
treatment or evaluation, but also has (or has had) an 'ongoing treatment relationship' with the
claimant." (citing 20 C.F.R. § 404.1502)). Even if the ALJ did not consider Dr. Kesler a treating
physician, which the Court has no way of knowing because the ALJ did not address his care, the
ALJ still needed to explain the weight given Dr. Kesler's opinions. See McCloud v. Barnhart,
166 F. App'x 410, 419 (11th Cir. 2006) (remanding where the ALJ failed to explain the weight
given to the report of a consulting psychologist or the reasons for discrediting his opinion);
Sharfarz v. Bowen, 825 F.2d 278, 279-80 (11th Cir. 1987) ("[T]he ALJ was required to state with
particularity the weight he gave the different medical opinions and the reasons therefor."
(citation omitted)). Consequently, the ALJ’s decision lacks the clarity required for the Court to
perform a meaningful review.
This Court cannot find substantial evidence in the record supporting the ALJ’s contention
that Dr. Villarreal’s records do not support the restrictions she placed on McCormick in her
Residual Functional Capacity, Seizure Questionnaire, Medical Source Statement and Mental
Capacity Questionnaire. Moreover, the ALJ failed to mention, much less consider, the records
and restrictions of activity placed on McCormick by Dr. Kesler, her treating specialist to whom
McCormick had been referred by Dr. Villarreal. The ALJ’s decision lacks sufficient reasoning
to establish that the proper legal analysis has been conducted. Since the ALJ omitted the
evidence of record from Dr. Kesler and failed to provide linkage between her claims of no
supporting records and Dr. Villarreal’s restrictions of activity, this case is due to be remanded for
further proceedings not inconsistent with this decision.6
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 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 6th day of August, 2015.
s/WILLIAM E. CASSADY_____________
UNITED STATES MAGISTRATE JUDGE
The undersigned recognizes that the ALJ gave great weight to the consultative examination of Dr.
Yager, but notes that Dr. Yager’s examination was inconclusive, opining that McCormick “might” be
embellishing her problems and “might” have psychiatric issues as opposed to actual seizures. Further, he
recommended further testing to determine the existence of seizures, which the ALJ neglected to do, as has
been raised by McCormick.
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