Reynolds v. Colvin
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 8/24/2016. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
HALEY C. REYNOLDS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying her claim for a period
of disability and disability insurance 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. 17 & 19 (“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 counsel at the August 18, 2016 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
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 19 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
Plaintiff alleges disability due to degenerative disc disease of the lumbar spine,
Administrative Law Judge (ALJ) made the following relevant findings:
The claimant last met the insured status requirements of the
Social Security Act on September 30, 2010.
The claimant did not engage in substantial gainful activity
during the period from her amended alleged onset date of April 1, 2010
through her date last insured of September 30, 2010 (20 CFR 404.1571 et
Through the date last insured, the claimant had the following
severe impairments: degenerative disc disease of the lumbar spine,
agoraphobia and anxiety, and chronic obstructive pulmonary disease
(COPD) (20 CFR § 404.1520(c)).
Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the residual
functional capacity to perform less than a full range of light work as
defined in 20 CFR 404.1567(b). The claimant can lift and carry 20 pounds
occasionally and 10 pound[s] frequently. The claimant would need to
alternate sitting/standing about every 30 minutes to one hour but would
not need to leave the workstation. The claimant can occasionally use
foot controls, climb stairs and ramps, balance, stoop, kneel, crouch, and
crawl. The claimant can never climb ladders, ropes, and scaffolds. The
claimant can never work at or around unprotected heights and
dangerous equipment, temperature extremes, humidity, wetness, and
exposure to concentrated environmental pollutants such as dust,
chemicals and fumes. The claimant is able to understand [and] to carry
out simple one or two step instructions and detailed but uninvolved
written or oral instructions involving a few concrete variables in or from
standardized situations, and avoid tasks involving a variety of
instructions or tasks. The claimant cannot work in crowds or with the
public. The claimant can have occasional interaction with coworkers.
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 SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In terms of the claimant’s alleged physical impairments, the claimant has
received generally conservative treatment for her physical health and the
objective evidence shows generally normal findings. In 2010, the claimant
presented multiple times for issues regarding a chronic cough. A chest Xray from May 2010 showed normal findings. Moreover, the claimant’s
lungs were noted to be clear. In addition, a pulmonary function test and
bronchoscopy showed no abnormal findings. She was prescribed Ultram
for her pain symptoms. The claimant presented in September 2010 for a
In January 2013, the claimant presented twice to Providence Hospital,
once for pain and fatigue and another time for gastrointestinal pain.
Despite gastrointestinal pain, a small bowel biopsy showed normal
findings. A chest X-ray showed negative findings, and she had a normal
EKG. When presenting for general weakness, she had wheezing in her
lungs, but had generally normal examination findings. She was assessed
with acute muscle weakness and discharged.
The claimant’s medical records from 2012 and 2013 show that the claimant
presented for weakness and alleged delirium. She was assessed with
chronic lower back pain, and delirium linked to possible drug interaction
issues. Nevertheless, physical examination findings were generally within
Her treatment records from Alabama Orthopaedic Clinic, PC in 2013 show
that the claimant presented for lower back pain. The notes from a 2013
visit note that a MRI lumbar view from June 2011 showed arthritic
changes at the L5-S1 area. Upon examination, there was tenderness
present in her lumbosacral spine and she had a positive straight leg [raise]
test. Nevertheless, she had no tenderness, swelling or deformities in her
lower extremities and had a full range of motion. She had generally
normal findings in her cervical and thoracic spine. In addition, she
generally had a normal gait and station at her treatment visit in June 2013.
She was assessed with degenerative disc disease of the lumbar spine.
In terms of the claimant’s mental impairments, the claimant has received
little consistent, ongoing, or aggressive treatment for her mental
impairments. Moreover, recent evidence from June and November 2013
shows that the claimant’s symptoms have subsided. In 2007 to 2008, prior
to the amended alleged onset date, the claimant received treatment from
N. Faye Pierce, Ph.D. The claimant was assessed with agoraphobia
notably in connection with her divorce in 2007. The claimant presented
with additional symptoms in May 2007, and her prescription for Adderall
was increased for panic attacks and she was prescribed Wellbutrin to aid
in her endeavor to quit smoking.
The claimant’s treatment records from Alabama Psychiatric Services from
2012 showed that the claimant reported symptoms of exhaustion, anxiety,
and agoraphobia. She was prescribed Cymbalta for her reported anxiety
attacks that occurred 1-2 times per week. She was assessed with
generalized anxiety disorder, and a global assessment of functioning
(GAF) score of 50, which indicates serious symptoms. Treatment records
from Infection Limited show that she was assessed with
anxiety/depression with her predominate component being anxiety.
Nevertheless, her medical records from Alabama Orthopaedic Clinic in
2013 show that the claimant denied feeling anxious or depressed. In
addition, upon examination, her mood was normal, affect appropriate,
and she was oriented and alert.
After considering the evidence of record, the undersigned finds that the
above residual functional capacity accommodates the claimant’s severe
physical and mental health impairments. Specifically, the claimant’s
degenerative disc disease of the lumbar spine is accommodated by the
above limitation to less than a full range of light work and the additional
postural limitations. The claimant’s COPD is accommodated by the
limitation precluding her from working around temperature extremes,
humidity, wetness, and exposure to concentrated environmental
pollutants such as dust, chemicals and fumes. The claimant’s agoraphobia
and anxiety, and any arising symptoms, are accommodated by the above
concentration and social limitations.
As for the opinion evidence, the opinion of Joanna Koulianos, Ph.D. from
October 2012[,] finding that there was insufficient evidence to find any
mental limitations[,] is given no weight in light of newer evidence
received at the hearing level, the claimant’s complaints, and the overall
evidence of record indicating mental health issues and treatment thereof.
The opinion of Dr. Koulianos from September 2012 is given some weight
in that it is generally consistent with the claimant’s testified mental health
complaints, activities of daily living, and medical record evidencing
mental health issues and treatment thereof, but for the opinion setting
forth that the claimant could not complete a normal workweek or handle
any changes in a work setting, which is inconsistent with the claimant’s
treatment records, ability to have friends, ability to perform activities of
daily living, and treatment noted wherein the claimant denied having any
anxiety or depression symptoms.
The opinion of Patrick Nolan, M.D. is given little weight because it is not
consistent with the claimant’s non-aggressive and inconsistent mental
health treatment, the lack of any hospitalization for the claimant’s mental
health, and in light of her activities of daily living.
The opinion of Keith Varden, M.D., that the claimant has “no major
medical disability that would render her permanently disabled”, while
typically one reserved to the Commissioner, is given great weight because
it is consistent with the claimant’s overall medical evidence of record, the
objective evidence with generally normal findings, the lack of aggressive
or consistent health care, and the lack of frequent hospitalizations.
The GAF score is given little weight because it is not consistent with the
claimant’s overall medical record subsequent to the alleged amended
onset date, particularly in light of the claimant’s own reported denial of
anxiety and depression. Moreover, GAF scores are but one tool used by
clinicians to develop the clinical picture and cannot be used in isolation
from the rest of the evidence to make a disability determination because
they are mere snap shots in time, rather than a longitudinal view of the
claimant’s mental health. As a result, the undersigned gives the GAF
opinion no weight.
In sum, the above residual functional capacity assessment is supported by
the lack of consistent and on-going aggressive treatment for her mental
and physical impairments, the objective evidence showing generally
normal findings in regards to her COPD, the lack of severe abnormal
findings in regards to her degenerative disc disease of the lumbar spins,
and in light of the claimant’s inconsistent mental health treatment and
Through the date last insured, the claimant was unable to
perform any past relevant work (20 CFR 404.1565).
The claimant was born on August 18, 1962 and was 48 years old,
which is defined as a younger individual age 18-49, on the date last
insured. The claimant subsequently changed age category to closely
approaching advanced age (20 CFR 404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
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 transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there were
jobs that existed in significant numbers in the national economy that
the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
Through the date last insured, 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 and Rule
202.14. However, the claimant’s ability to perform all or substantially all of
the requirements of this level of work was impeded by additional
limitations. To determine the extent to which these limitations erode the
unskilled light occupational based, through the date last insured, the
Administrative Law Judge asked the vocational expert whether jobs
existed 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 have been able to perform the requirements of representative
occupations such as: bench assembler (DOT 706.684-042) which is light
unskilled work with approximately 370,000 jobs in the national economy;
garment folder (DOT 789.687-066) which is light unskilled work with
approximately 421,000 jobs in the national economy; and surveillance
systems monitor (DOT 379.367-010) which is sedentary unskilled work
with approximately 82,000 jobs in the national economy.
Although the vocational expert’s testimony is inconsistent with the
information contained in the Dictionary of Occupational Titles, there is a
reasonable explanation for the discrepancy. The sit/stand option is
consistent with the jobs provided by the vocational expert in light of the
expert’s experience in the field of vocational rehabilitation/placing people
in job[s] and training/education/knowledge of these jobs, in accordance
with SSR 00-4p.
Based on the testimony of the vocational expert, the undersigned
concludes that, through the date last insured, considering the claimant’s
age, education, work experience, and residual functional capacity, the
claimant was capable of making a successful adjustment to other work
that existed in significant numbers in the national economy. A finding of
“not disabled” is therefore appropriate under the framework of the abovecited rules.
The claimant was not under a disability, as defined in the Social
Security Act, at any time from April 1, 2010, the amended alleged onset
date, through September 30, 2010, the date last insured (20 CFR
(Tr. 22, 23, 25, 26-27, 29 & 30 (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.
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform her past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)2
(per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the
burden, at the fourth step, of proving that she is unable to perform her 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. Although “a
claimant bears the burden of demonstrating an inability to return to her past relevant
work, the [Commissioner of Social Security] has an obligation to develop a full and fair
record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a
plaintiff proves that she cannot do her past relevant work, as here, it then becomes the
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given
her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Phillips, supra, 357 F.3d at 1237;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct.
1723, 146 L.Ed.2d 644 (2000); 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, before the date last insured, she
could perform those light and sedentary 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).3
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) (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, Reynolds asserts three reasons why the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
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).
the ALJ erred in failing to assign controlling weight to the opinion of the treating
physician, Dr. Patrick Nolan; (2) the ALJ erred in failing to seek clarification from Dr.
Nolan after finding that the treating physician’s opinion was inadequate to assign
controlling weight; and (3) the ALJ erred (under SSR 83-20 and HALLEX I-2-6-70(A)) in
failing to call on the services of a medical expert to determine the onset date of her
disability. Because the undersigned finds that the ALJ erred to reversal with respect to
plaintiff’s first assignment of error, the Court only tangentially discusses the other
assignments of error. See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985)
(“Because the ‘misuse of the expert’s testimony alone warrants reversal,’ we do not
consider the appellant’s other claims.”).
On September 10, 2012, Dr. Nolan completed a Clinical Assessment of Pain
(“CAP”) form and thereon indicated that he had treated plaintiff for 5 months and that
the condition causing Reynolds’ pain, confirmed by June 16, 2011 MRI, was severe facet
arthrosis at L5-S1, with degenerative disc disease and compromise of the left L5-S1 disc.
(Tr. 346; see also id. at 348 (“The patient has major depression as a consequence of the
chronic pain. The patient also has generalize[d] anxiety disorder, anticipatory anxiety,
possibly posttraumatic stress disorder and agoraphobia. These are beyond my
expertise, but the patient sees Dr. John Cantwell a psychiatrist in Daphne, Alabama. The
patient states she wakes up in pain to the point of nausea. She has skin hypersensitivity,
states that it hurts to even be touched, suggestive of severe fibromyalgia. The patient
complains of arthritic complaints of hands, shoulders, hips, ankle and lower back. Her
back pain prevents her from standing or sitting at a desk for any significant length of
time or for walking long distances.”).) Nolan indicated that plaintiff’s pain “[a]lways”
distracts her from adequately performing daily activities or work and one to two times
a week the pain is intractable and virtually incapacitating (id. at 346); physical activity—
such as walking, standing, bending, lifting, etc.—greatly increase plaintiff’s symptoms
so as to cause distraction from or total abandonment of task (id.); and she is incapable of
performing her past work at a productive level because of her pain (id. at 347). Nolan
also opined on this form that plaintiff could not engage in any form of gainful
employment on a repetitive, competitive and productive basis over an eight-hour
workday, forty hours a week, without missing more than 2 days of work per month (id.)
and offered, in support of this opinion, the following: “In summary, the patient has
degenerative disc disease and chronic pain syndrome. This is complicated by major
depression and fibromyalgia, this is further compromised by a generalize[d] anxiety
disorder, which I would defer to Dr. John Cantwell.” (Id. at 348) According to Nolan, in
the year following his completion of the form, plaintiff would require psychotherapy,
pain management, and low impact physical therapy. (Id. at 347.) Nolan described the
restrictions/limitations on plaintiff’s daily activities (Tr. 348 (“The patient cannot
sweep, mop, vacuum or clean windows. Any twisting motion is extremely painful. She
cannot walk or stand for extended periods of time. Cannot walk to the mailbox and
back without pain. She can’t make a bed without stopping to rest. She can’t do
repetitive activities with her hands or fingers without pain and swelling.”); compare id.
with Tr. 347)) and indicated that plaintiff’s pain had been at the level indicated on the
form since 2009 (id.).
The law in this Circuit is clear that an 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.’” Nyberg v. Commissioner of Social Security, 179 Fed.Appx. 589, 590591 (11th Cir. May 2, 2006) (unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (other citations omitted). In other words, “the ALJ must give the
opinion of the treating physician ‘substantial or considerable weight unless “good
cause” is shown to the contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan.
15, 2014), quoting Phillips, supra, 357 F.3d at 1240 (other citation omitted); see Nyberg,
supra, 179 Fed.Appx. at 591 (citing to same language from Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Good cause is shown when the: “(1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] 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.
Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010)
In this case, the ALJ apparently accorded little weight to the opinions set forth on
the CAP form Dr. Nolan completed. (See Tr. 27 (citing Exhibit 14F, which consists of
Nolan’s CAP form and Clinical Assessment of Fatigue form).)4
The opinion of Patrick Nolan, M.D. is given little weight because it is not
consistent with the claimant’s non-aggressive and inconsistent mental
health treatment, the lack of any hospitalization for the claimant’s mental
health, and in light of her activities of daily living.
The undersigned cannot find any of the reasons offered by the ALJ for rejecting
Dr. Nolan’s CAP opinions supported by substantial evidence for the simple fact that Dr.
Nolan was not basing his CAP opinions on Reynolds’ mental impairments; instead, his
pain comments have as their primary focus plaintiff’s severe facet arthrosis at L5-S1,
While the ALJ references the forms Dr. Nolan completed, the undersigned is
troubled by her failure to delineate the pertinent pain opinions set forth by the treating
physician, particularly since the reasons relied upon by the ALJ for rejecting the CAP opinions
bear no relationship to those opinions.
with degenerative disc disease and compromise of the left L5-S1 disc. (Tr. 346.) To be
sure, Nolan confuses the issue somewhat by commenting that Reynolds’ major
depression was “caused” by her chronic pain and his mention of other mental
impairments (Tr. 348); however, after mentioning numerous mental impairments, he
immediately “backtracks” by acknowledging that such impairments are outside his area
of expertise5 and that Dr. John Cantwell, plaintiff’s treating psychiatrist in Daphne,
would be the proper consulting source with respect to her mental impairments (id.).
Because Dr. Nolan’s CAP opinions are directed to a physical impairment (that is, severe
facet arthrosis at L5-S1, with degenerative disc disease and compromise of the left L5-S1
disc), not a mental impairment, the ALJ’s “mental” comments offer no reason for the
rejection of Dr. Nolan’s pain opinions. Moreover, because the ALJ offers no “context”
with respect to her conclusory reference to plaintiff’s “activities of daily living,” this
Court is left to question whether this comment is directed to plaintiff’s mental
“activities” as opposed to her “physical” activities of daily living. (Compare Tr. 27 with
Tr. 23-24 (in the context of discussing whether plaintiff’s mental impairments met or
medically equaled Listings 12.04 or 12.06, the ALJ specifically determined that “[i]n
activities of daily living, the claimant had a mild restriction. During the day, she spends
time on her laptop, watches television, and prepare[s] simple meals (Hearing
Testimony). She alleges she is not able to perform household chores regularly due to her
physical limitations and pain rather than due to her mental limitations.” (emphasis
supplied)).) Accordingly, this Court finds that the reasons set forth by the ALJ for
rejecting the treating physician’s opinion are illusory, not real. Moreover, those
Dr. Nolan is an internist who specializes in infectious diseases. See
http://www.vitals.com/doctors/Dr_Patrick_E_Nolan.hyml (last visited, August 12, 2016).
“reasons” have no basis or support in the record.6 Because the reasons offered by the
ALJ for rejecting Dr. Nolan’s CAP opinions are inadequate, this cause is due to be
remanded to the Commissioner for further consideration not inconsistent with this
In reaching this conclusion, the Court does not mean to indicate that there are no
reasons the ALJ can legitimately point to (on remand) for rejecting Dr. Nolan’s CAP opinions.
However, this Court decidedly cannot weigh the evidence anew and “come up” with valid
reasons for the ALJ’s rejection of Dr. Nolan’s CAP opinions, see Wilcox v. Commissioner, Social
Security Administration, 442 Fed.Appx. 438, 440 (11th Cir. Sept. 21, 2011) (“As our limited review
precludes us from reweighing the evidence [or deciding the facts anew], we will find no
reversible error when the ALJ has articulated specific reasons for failing to give the opinion of a
treating physician controlling weight, if those reasons are supported by substantial evidence.”
(emphasis supplied)), as the Commissioner appears to suggest (see Doc. 13, at 8 (“First, although
not dispositive, the Commissioner notes that Dr. Nolan was not treating Plaintiff at the time of
her DLI, as Plaintiff herself acknowledges . Second, Dr. Nolan’s opinions are conclusory
without any support whatsoever.”)). Moreover, while there can be little question but that Dr.
Nolan did not treat plaintiff prior to her date last insured, any suggestion by the government
during oral argument that the ALJ made mention of this fact in her decision denying benefits is
incorrect. (See Tr. 20-30.) And the ALJ certainly did not rely on this “fact” in rejecting the
treating physician’s “opinion.” (See Tr. 27.) Indeed, it appears likely that the ALJ would not
have relied upon this reason to reject Nolan’s “opinion” given her clear findings that plaintiff’s
degenerative disc disease was a severe impairment prior to the date last insured (Tr. 22), which,
while not of listing severity (Tr. 23), would require plaintiff “to alternate sitting/standing about
every 30 minutes to one hour but would not need to leave the workstation[,]” etc. (Tr. 25).
Because the ALJ clearly found that, prior to the date last insured, plaintiff had severe
degenerative disc disease causing numerous postural limitations, this Court finds that it is
simply not too much to ask that the ALJ address “head on” Dr. Nolan’s opinion that plaintiff
has experienced back pain (caused by severe facet arthrosis at L5-S1 with degenerative disc
disease and compromise of the left L5-S1 disc) since 2009 so severe that it distracts her from
adequate performance of daily activities or work, one to two times a week the pain would be
intractable and virtually incapacitating, and that physical activity would greatly increase the
pain and cause distraction from task or total abandonment of task (Tr. 346).
On remand, the ALJ can certainly seek clarification from Dr. Nolan in any way
she sees fit, although she is not required to seek such clarification, see 20 C.F.R. § 404.1520b(c)(1)
(2016) (“We may recontact your treating physician, psychologist, or other medical source. We
may choose not to seek additional evidence or clarification from a medical source if we know
from experience that the source either cannot or will not provide the necessary evidence.”
(emphasis supplied)), and can also retain the services of a medical expert (if necessary) to
determine Reynolds’ onset of disability, particularly in light of Dr. Nolan’s “dating” of
plaintiff’s pain, associated with degenerative disc disease, to 2009.
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, see Shalala v. Schaefer, 509
U.S. 292, 112 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction
over this matter.
DONE and ORDERED this the 24th day of August, 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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