Cryar v. Berryhill
MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's applications for benefits be REVERSED and REMANDED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 3/8/18. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
STEVEN G. CRYAR,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 17-00238-N
MEMORANDUM OPINION AND ORDER
Plaintiff Steven G. Cryar brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner
of Social Security (“the Commissioner”) denying his applications for a period of
disability and disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
consideration of the parties’ briefs (Docs. 13, 18) and those portions of the
administrative record (Doc. 12) (hereinafter cited as “(R. [page number(s) in lowerright corner of transcript])”) relevant to the issues raised, and with the benefit of
oral argument held February 2, 2018, the Court finds that the Commissioner’s final
decision is due to be REVERSED and REMANDED under sentence four of §
With the consent of the parties, the Court has designated the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in this
civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Docs. 22, 24).
On January 26, 2014, Cryar filed an application for a period of disability and
DIB with the Social Security Administration (“SSA”). On November 17, 2015, he
also filed an application for SSI.
Both applications alleged disability beginning
October 15, 2009.2 After his applications were initially denied, Cryar requested a
hearing before an Administrative Law Judge (“ALJ”) with the SSA’s Office of
Disability Adjudication and Review; a hearing was held on January 15, 2016. On
February 29, 2016, the ALJ issued an unfavorable decision on Cryar’s applications,
finding him not entitled to benefits. (See R. 17 – 31).
The Commissioner’s decision on Cryar’s applications became final when the
Appeals Council for the Office of Disability Adjudication and Review denied Cryar’s
request for review of the ALJ’s decision on April 28, 2017. (R. 1 – 5). Cryar then
filed this action under §§ 405(g) and 1383(c)(3) for judicial review of the
Commissioner’s final decision.
See (Doc. 1); 42 U.S.C. § 1383(c)(3) (“The final
determination of the Commissioner of Social Security after a hearing [for SSI
benefits] shall be subject to judicial review as provided in section 405(g) of this title
to the same extent as the Commissioner’s final determinations under section 405 of
this title.”); 42 U.S.C. § 405(g) (“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party,
“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she were insured. 42 U.S.C. §
423(a)(1)(A) (2005). For SSI claims, a claimant becomes eligible in the first month
where she is both disabled and has an SSI application on file. 20 C.F.R. § 416.202–
03 (2005).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
irrespective of the amount in controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social Security may
allow.”); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir.
2007) (“The settled law of this Circuit is that a court may review, under sentence
four of section 405(g), a denial of review by the Appeals Council.”).
Standards of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ’
” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)
(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [Commissioner].’ ” Id. (quoting
Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in
original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))).
“‘Even if the evidence preponderates against the [Commissioner]’s factual findings,
[the Court] must affirm if the decision reached is supported by substantial
evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”).3 “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
Nevertheless, “ ‘[t]here is no burden upon the district court to distill every
potential argument that could be made based on the materials before it…’ ” Solutia,
Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (quoting
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en
banc)) (ellipsis added). Generally, claims of error not raised in the district court are
deemed waived. See Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 –
16 (11th Cir. 1994) (“As a general principle, [the court of appeals] will not address
an argument that has not been raised in the district court…Because Stewart did
not present any of his assertions in the district court, we decline to consider them on
appeal.” (applying rule in appeal of judicial review under 42 U.S.C. §§ 405(g),
1383(c)(3)); Crawford, 363 F.3d at 1161 (same); Hunter v. Comm’r of Soc. Sec., 651 F.
App'x 958, 962 (11th Cir. 2016) (per curiam) (unpublished) (same); Cooley v.
Comm'r of Soc. Sec., 671 F. App'x 767, 769 (11th Cir. 2016) (per curiam)
(unpublished) (“As a general rule, we do not consider arguments that have not been
fairly presented to a respective agency or to the district court. See Kelley v. Apfel,
185 F.3d 1211, 1215 (11th Cir. 1999) (treating as waived a challenge to the
administrative law judge’s reliance on the testimony of a vocational expert that was
‘not raise[d] . . . before the administrative agency or the district court’).”); In re Pan
Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight
Program Litig., 905 F.2d 1457, 1462 (11th Cir. 1990) (“[I]f a party hopes to preserve
a claim, argument, theory, or defense for appeal, she must first clearly present it to
the district court, that is, in such a way as to afford the district court an opportunity
to recognize and rule on it.”); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)
(applying In re Pan American World Airways in Social Security appeal).
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).
“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘The [Commissioner]’s failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates reversal.’” Ingram, 496 F.3d at
(quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).
Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
In sum, courts “review the Commissioner’s factual findings with deference
and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo
the legal principles upon which the Commissioner's decision is based. Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, we review the resulting
decision only to determine whether it is supported by substantial evidence.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for DIB and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment ... which has
lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).5
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant is capable—given his or her age, education, and work history—of engaging
in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
Finally, although the “claimant bears the
The undersigned will hereinafter use “Step One,” “Step Two,” etc. when
referencing individual steps of this five-step sequential evaluation.
burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
When the ALJ denies benefits and the Appeals Council denies review of that
decision, the Court “review[s] the ALJ’s decision as the Commissioner’s final
decision.” Doughty, 245 F.3d at 1278. But “when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.
Nevertheless, “when the [Appeals Council] has denied review, [the Court] will look
only to the evidence actually presented to the ALJ in determining whether the
ALJ’s decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998). If the applicant attacks only the ALJ’s decision, the Court
may not consider evidence that was presented to the Appeals Council but not to the
ALJ. See id. at 1324.
Summary of ALJ Decision
At Step One, the ALJ determined that Cryar met the applicable insured
status requirements through December 31, 2014, and that he had not engaged in
substantial gainful activity since the alleged disability onset date, October 15, 2009.
(R. 22). At Step Two, the ALJ determined that Cryar had the following severe
impairments: bipolar disorder and personality disorder.
(R. 22 – 23).
Three, the ALJ found that Cryar did not have an impairment or combination of
impairments that met or equaled the severity of one of the specified impairments in
the relevant Listing of Impairments. (R. 23 – 25).
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). 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. 20 C.F.R. §
404.1545(a). 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. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth
step…20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the
claimant’s RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Cryar had the RFC “to perform a full range of work
at all exertional levels but with the following nonexertional limitations[:] The
claimant is limited to the simple, routine tasks of unskilled work involving short
simple instructions and simple workplace decisions, with minimal change in the
work setting. The claimant can maintain concentration, persistence, and pace for
two-hour periods. He can interact with coworkers on a basic level, but it would be
best for him to have a well-spaced work environment that would reduce the amount
of interaction required. Contact with the public should not be a usual part of the
job. He also cannot perform work at a production pace, though he can do goaloriented type work.” (R. 25 – 29).
Based on this RFC, the ALJ determined that Cryar was unable to perform
any past relevant work.
At Step Five, after taking testimony from a
vocational expert, the ALJ found that there exist a significant number of jobs in the
national economy that Cryar could perform given his RFC, age, education, and work
experience. (R. 29 – 30). Thus, the ALJ found that Cryar was not disabled under
“To determine the physical exertion requirements of different types of employment
in the national economy, the Commissioner classifies jobs as sedentary, light,
medium, heavy, and very heavy. These terms are all defined in the regulations …
Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4.
See also 20 C.F.R. §§ 404.1567, 416.967.
the Social Security Act. (R. 30 – 31).
Medical Opinion of Dr. Starkey
determination may include medical opinions.
See 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and
severity of [the claimant's] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and
[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
“There are three tiers of
medical opinion sources: (1) treating physicians; (2) nontreating, examining
physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of
Soc. Sec., 585 F. App'x 758, 762 (11th Cir. 2014) (per curiam) (unpublished) (citing
20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)). “In assessing medical opinions,
the ALJ must consider a number of factors in determining how much weight to give
to each medical opinion, including (1) whether the physician has examined the
claimant; (2) the length, nature, and extent of a treating physician's relationship
with the claimant; (3) the medical evidence and explanation supporting the
physician’s opinion; (4) how consistent the physician’s opinion is with the record as
a whole; and (5) the physician’s specialization.
These factors apply to both
examining and non-examining physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586
F. App'x 521, 523 (11th Cir. 2014) (per curiam) (unpublished) (internal citations
and quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) &
Among the medical opinions reviewed by the ALJ in this case was that from
psychologist Dr. Kenneth Starkey, who conducted a consultative examination of
Cryar on April 21, 2014. (See R. 23). The ALJ summarized Dr. Starkey’s opinion as
Dr. Starkey opined that the claimant’s ability to understand,
remember, and carry out simple/concrete instructions appeared to be
adequate, as did his ability to work independently. He opined that the
claimant’s ability to work with supervisors, co-workers, and the
general public appeared to be marginal, as was his ability to work with
pressures common to most everyday work settings. (B7F).
(R. 27). While recognizing “that the opinions of examining sources are generally to
be accorded more weight than those of non-examining sources,” the ALJ
nevertheless assigned “little weight to Dr. Starkey’s opinion that [Cryar] has a
‘marginal’ ability to interact with coworkers or deal with common work pressures
because such opinions are inconsistent with Dr. Starkey’s own diagnosis of
depressive disorder ‘in partial remission’ and his assessment of a global assessment
of functioning (GAF) score of 63.” (R. 28) The ALJ assigned “the remainder of Dr.
Starkey’s opinions…some weight,” without elaboration. (R. 28). Cryar argues that
the ALJ reversibly erred “by failing to give adequate weight to” Dr. Starkey’s
opinion. (Doc. 13 at 4).
Unlike treating physicians, an ALJ is not required to afford special deference
to the opinions of one-time examining physicians. See McSwain v. Bowen, 814 F.2d
617, 619 (11th Cir. 1987) (per curiam). Nevertheless, the law of this Circuit holds
that “the ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor[,]” Winschel, 631 F.3d at 1179, and those reasons
must be supported by substantial evidence.7 While the undersigned expresses no
opinion as to what weight Dr. Starkey’s opinion should ultimately be assigned, the
undersigned finds that the ALJ did not adequately explain his reasons for the
weight he assigned to Dr. Starkey’s opinion, and that his decision to assign more
weight to the opinion of a non-examining physician was thus unjustified.
First, the ALJ stated no reason for giving only “some weight” to the portion of
Dr. Starkey’s opinion that was not given “little weight.”
“In the absence of such a statement, it is impossible for a reviewing
court to determine whether the ultimate decision on the merits of the
claim is rational and supported by substantial evidence.” Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Therefore, when the
ALJ fails to “state with at least some measure of clarity the grounds
for his decision,” we will decline to affirm “simply because some
rationale might have supported the ALJ’s conclusion.” Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam). In such a
situation, “to say that [the ALJ’s] decision is supported by substantial
evidence approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.” Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 596
F.2d 1209, 1213 (4th Cir. 1979)) (internal quotation marks omitted).
See, e.g., Huntley v. Soc. Sec. Admin., Comm'r, 683 F. App'x 830, 833 (11th Cir.
2017) (per curiam) (unpublished) (“The decision to assign little weight to examining
physicians’ opinions is supported by substantial evidence. As one-time examiners,
the physicians were not treating physicians, and the administrative law judge was
not required to afford special deference to their opinions. See McSwain, 814 F.2d at
619. And neither of the examining physicians provided an explanation in support of
their determinations of Huntley's limitations. 20 C.F.R. § 404.1527(c)(3). The
physicians instead apparently relied upon Huntley's subjective complaints. And
their opinions about Huntley’s extreme limitations were not supported by their
medical examinations of him.”).
Winschel, 631 F.3d at 1179.8
Second, substantial evidence does not support the ALJ’s two reasons for
assigning “little weight” to Dr. Starkey’s opinions of “marginal” abilities. As to Dr.
Starkey’s diagnosis of depressive disorder in partial remission, the ALJ does not
elaborate on why he believes such a diagnosis is inconsistent with a marginal
ability to interact with coworkers or deal with common work pressures, and
generally “the mere existence of…impairments does not reveal the extent to which
they limit [a claimant’s] ability to work…” Moore, 405 F.3d at 1213 n.6. For all it
appears, the ALJ simply substituted his own judgment as to the significance of a
diagnosis for that of a medical professional. See Freeman v. Schweiker, 681 F.2d
727, 731 (11th Cir. 1982) (per curiam) (holding that the ALJ reversibly erred when
he “improperly substituted his judgment of the claimant’s condition for that of the
medical and vocational experts”); Marbury v. Sullivan, 957 F.2d 837, 840–41 (11th
An important corollary to this rule is that the Court cannot affirm an ALJ’s
decision on the weight assigned to a medical opinion based on reasons the ALJ did
not articulate. See Dempsey v. Comm'r of Soc. Sec., 454 F. App’x 729, 733 (11th Cir.
2011) (per curiam) (unpublished) (“The Commissioner argues that Dr. Janush's
opinion was rendered two years after Dempsey's last insured date and there is no
specific medical evidence that Dempsey had mental limitations during the period
she was insured. However, the ALJ did not offer this explanation in his decision. We
cannot affirm based on a post hoc rationale that ‘might have supported the ALJ's
conclusion.’ See Owens, 748 F.2d at 1516.”); Hubbard v. Colvin, 643 F. App’x 869,
873 (11th Cir. 2016) (per curiam) (unpublished) (“Despite identifying multiple
‘careless' errors in the ALJ's opinion, the district court relied on Hubbard's work
history, ‘along with his ability to perform basic personal tasks like driving, paying
bills, and performing self-care functions,’ to affirm the ALJ's decision ... [I]n relying
on evidence of Hubbard's ability ‘to perform basic personal tasks,’ the district court
affirmed based on its own post hoc rationale. However, we decline to affirm using
reasoning that ‘might have supported the ALJ's conclusion’ but was not offered by
the ALJ himself. See Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per
Cir. 1992) (Johnson, J., concurring specially) (“An ALJ may, of course, engage in
whatever idle speculations regarding the legitimacy of the claims that come before
him in his private or personal capacity; however, as a hearing officer he may not
arbitrarily substitute his own hunch or intuition for the diagnosis of a medical
As for Dr. Starkey’s assessment of a 63 GAF score for Cryar, the Eleventh
Circuit has explained the significance of GAF scores in disability determinations as
A GAF score is a subjective determination that represents “the
clinician’s judgment of the individual's overall level of functioning.”
Am. Psychiatric Ass'n, [Diagnostic and Statistical Manual of Mental
Disorders] 32 [(4th ed., Text Revision 2000)]. The GAF scale accounts
for psychological, social, and occupational limitations, but not
environmental or physical impairments. Id…The Commissioner has
concluded, however, that the GAF scale “does not have a direct
correlation to the severity requirements in [the] mental disorders
listings.” Revised Medical Criteria for Evaluating Mental Disorders
and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50764–65 (Aug. 21,
2000). As the Sixth Circuit has observed, GAF scores may be helpful in
formulating a claimant's RFC, but are not essential to the RFC's
accuracy, and an ALJ’s failure to describe GAF scores does not render
the ALJ’s RFC assessment inaccurate. Howard v. Comm'r of Soc. Sec.,
276 F.3d 235, 241 (6th Cir. 2002). Similarly, the Eighth Circuit has
recognized that a GAF score may have little or no bearing on a
claimant’s social and occupational functioning. Jones v. Astrue, 619
F.3d 963, 973 (8th Cir. 2010).
Thornton, 597 F. App’x at 613. In short, “GAF scores do not necessarily reflect a
person’s ability to do work.” id.
The ALJ himself further diminished any
significance that could have been attached to Dr. Starkey’s GAF score when he later
assigned “little weight” to the various GAF scores in evidence, observing that “a
GAF score is of limited value in assessing functional capacity[,] can be based upon
factors not relevant to a determination of disability, and are not designed for
adjudicative determinations.” (R. 28).
While assigning “little” weight to some of Dr. Starkey’s opinion and only
“some” to the rest, and assigning “some” weight to the opinion of consultative
examining psychologist Dr. Thomas Bennett, the ALJ appeared to attach greater
weight to the opinion of non-examining state agency consultant Dr. Donald Hinton
because he “was able to review much of the claimant’s medical records, including
the assessments of both consultative examiners.”
By assigning more
weight to Dr. Hinton’s opinion than the opinions of the examining physicians, the
ALJ indicated, at least in his judgment, that Dr. Hinton’s opinion materially
differed from those of the examining physicians.
However, “[t]he opinions of
nonexamining, reviewing physicians,…when contrary to those of the examining
physicians, are entitled to little weight…” Sharfarz v. Bowen, 825 F.2d 278, 280
(11th Cir. 1987) (per curiam).9
This is not to say that an ALJ must always assign greater weight to an examining
physician’s opinion than a non-examiner’s opinion. It simply means that an ALJ
cannot use a non-examiner’s opinion as the sole basis for discrediting an examiner’s
opinion. So long as an ALJ articulates adequate other reasons, supported by
substantial evidence, for discrediting an examiner’s opinion, an ALJ may properly
assign more weight to a non-examiner’s opinion. See Huntley, 683 F. App’x at 833
(“Substantial evidence also supports the administrative law judge’s decision to
assign more weight to the non-examining physician’s opinion. Although the opinion
of an examining physician is ordinarily entitled to greater weight than the opinion
of a non-examining physician, the administrative law judge was free to reject the
opinions of the examining physicians because they were not supported by the
record…The non-examining physician also explained his conclusion about Huntley’s
residual functional capacity with specific reasons, and his opinion was consistent
with the treatment records.”).
Dr. Starkey’s examination of Cryar occurred a mere 8 days before Dr. Hinton
rendered his opinion, and Dr. Starkey’s report states that the “medical evidence of
record provided by the DDS was reviewed and those findings were considered in the
overall assessment of the patient” (R. 440), thus indicating that Dr. Starkey largely
reviewed the same evidence as Dr. Hinton.10 As explained above, the ALJ gave no
reason for assigning “some weight” to part of Dr. Starkey’s opinion, and his reasons
for assigning “little weight” to the rest of the opinion were based on two perceived,
insubstantial discrepancies between the opinion and Dr. Starkey’s notes. The ALJ
gave no clear indication he found Dr. Starkey’s opinion to be inconsistent with the
other medical evidence of record. 11 As such, when presented with two medical
opinions that, by all appearances, were based on review of the same evidence, the
ALJ erred in crediting the opinion of the non-examiner over that of the examiner,
absent other reasons for doing so that were both clearly stated and supported by
In sum, the ALJ failed to give reasons for assigning “little” to “some” weight
The ALJ implicitly indicates as much. In assigning only “some weight” to Dr.
Bennett’s opinion, the ALJ took into account that “his assessment was performed in
2012, and that he was not provided with the claimant’s full medical file for review.”
(R. 28). The ALJ expressed no similar concerns about the evidence provided to Dr.
It could be argued that such a finding can be inferred from the ALJ’s emphasis
that Dr. Hinton’s opinions “are consistent with th[e] evidence, and are supported by
the relatively benign mental status examination findings contained within records
submitted at the hearing level.” (R. 28). To affirm the ALJ’s decision based on such
an inferential leap, however, would be inconsistent with this Circuit’s binding
precedent requiring an ALJ to “state with at least some measure of clarity the
grounds for his decision…” Winschel, 631 F.3d at 1179 (quotation omitted).
to Dr. Starkey’s opinion that were both clearly articulated and supported by
substantial evidence. Thus, the ALJ was not entitled to assigned greater weight to
the opinion of a non-examining physician. These mistakes constitute reversible
error.12 Thus, the Commissioner’s final decision denying Cryar’s applications for
benefits is due to be REVERSED and REMANDED under sentence four of §
Cryar requests that his case be remanded to the Commissioner with
directions he be “found disabled,” and only requests a remand for further
proceedings in the alternative.
(Doc. 13 at 7).
Generally, remand to the
Commissioner for further proceedings “is warranted where the ALJ has failed to
apply the correct legal standards.” Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.
1993). While this Court may enter an order “awarding disability benefits where the
[Commissioner] has already considered the essential evidence and it is clear that
the cumulative effect of the evidence establishes disability without any doubt[,]” id.,
Cryar has failed to convince the undersigned that this standard is met here. 14
The Commissioner has not argued harmless error as to this claim, and the
undersigned finds no independent reason to believe that the ALJ’s errors in this
regard were harmless.
In light of this determination, the undersigned finds it unnecessary to address
Cryar’s other claim of error that the vocational expert’s testimony failed to satisfy
the Commissioner’s burden at Step Five.
Compare Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991) (“The
credibility of witnesses is for the Secretary to determine, not the courts…The
decision of the Secretary here, however, rests not so much on the credibility of the
‘history of pain; presented by Carnes, as on the adoption of a legal standard
improper under Listing 10.10(A). The record in this case is fully developed and
Moreover, the reversible error in this case stems from the ALJ’s failure to state
sufficient reasons for assigning “some” to “little” weight to a one-time examining
physician’s opinion. As noted previously, the Commissioner is not required to afford
special deference to such an opinion, and the undersigned finds no reason to believe
that the Commissioner would be unable, on remand, to offer clearly articulated,
substantially supported reasons for assigning the same weight to Dr. Starkey’s
opinion.15 Accordingly, the undersigned finds it appropriate in this case to remand
for further proceedings.
there is no need to remand for additional evidence. Based on the facts adduced
below and after application of the proper legal standard, we hold that claimant met
the requirements of Listing 10.10(A) as early as 1982.”), with Broughton v. Heckler,
776 F.2d 960, 962 (11th Cir. 1985) (per curiam) (“Though we have found that the
ALJ erred in his application of the legal standards, at this time we decline to enter
an order requiring entitlement to disability benefits. While it is true that the
opinions of Drs. Todd and Raybin provide strong evidence of disability, it is at least
arguable that the report of Dr. Morse is to the contrary. Consequently, it is
appropriate that the evidence be evaluated in the first instance by the ALJ
pursuant to the correct legal standards.”), and Hildebrand v. Comm'r of Soc. Sec.,
No. 6:11-CV-1012-ORL-31, 2012 WL 1854238, at *7 (M.D. Fla. May 4, 2012) (“The
errors noted here compel a return of the case to the Commissioner to evaluate the
evidence and make findings in the first instance. For the reasons set forth above,
the Court finds that certain of the conclusions of the ALJ were not made in
accordance with proper legal standards and are not supported by substantial
evidence. The Court does not find that only one conclusion can be drawn from the
evidence; but that the conclusion that was drawn did not meet the standard of
review. Under such a circumstance, it would not be appropriate for this Court to
substitute its opinion of the weight to be given the evidence for that of the
Commissioner. While the Court has the power to do just that in an appropriate
case, the Court finds this is not such a case.”), report and recommendation adopted,
No. 6:11-CV-1012-ORL-31, 2012 WL 1854249 (M.D. Fla. May 21, 2012).
Again, the undersigned expresses no view on what weight Dr. Starkey’s opinion
should ultimately be assigned.
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued April 28, 2017, denying Cryar’s applications
for a period of disability, DIB, and SSI is REVERSED and REMANDED under
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991),
for further proceedings consistent with this decision. This remand under sentence
four of § 405(g) makes Cryar a prevailing party for purposes of the Equal Access to
Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and
terminates this Court’s jurisdiction over this matter.
Under Federal Rule of Civil Procedure 54(d)(2)(B), should Cryar be awarded
Social Security benefits on the subject applications following this remand, the Court
hereby grants Cryar’s counsel an extension of time in which to file a motion for fees
under 42 U.S.C. § 406(b) until thirty days after the date of receipt of a notice of
award of benefits from the SSA.16 Consistent with 20 C.F.R. § 422.210(c), “the date
of receipt of notice … shall be presumed to be 5 days after the date of such notice,
unless there is a reasonable showing to the contrary.” If multiple award notices are
issued, the time for filing a § 406(b) fee motion shall run from the date of receipt of
See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per
curiam) (“Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim.”); Blitch
v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam) (unpublished) (“In
Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best
practice for avoiding confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B)
into the procedural framework of a fee award under 42 U.S.C. § 406 is for a plaintiff
to request and the district court to include in the remand judgment a statement
that attorneys fees may be applied for within a specified time after the
determination of the plaintiff's past due benefits by the Commission. 454 F.3d at
the latest-dated notice.
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 8th day of March 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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