Williams v. Berryhill
Filing
22
MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's benefits be AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 7/2/18. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY D. WILLIAMS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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)
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)
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CIVIL ACTION NO. 17-00346-N
MEMORANDUM OPINION AND ORDER
Plaintiff Kimberly D. Williams brought this action under 42 U.S.C. § 405(g)
seeking judicial review of a final decision of the Defendant Commissioner of Social
Security (“the Commissioner”) denying her application 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. Upon consideration of the parties’ briefs (Docs. 13, 14) and
those portions of the administrative record (Doc. 12) (hereinafter cited as “(R. [page
number(s) in lower-right corner of transcript])”) relevant to the issues raised, the
Court finds that the Commissioner’s final decision is due to be AFFIRMED under
sentence four of § 405(g).1
I.
Background
On September 24, 2014, Williams filed an application for a period of
disability and DIB with the Social Security Administration (“SSA”), alleging
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. 18, 19). With the Court’s consent, the
parties jointly waived the opportunity for oral argument. (See Docs. 17, 20).
1
disability beginning August 1, 2014.2 After her application was initially denied,
Williams requested a hearing before an Administrative Law Judge (“ALJ”) with the
SSA’s Office of Disability Adjudication and Review. The hearing was held on March
2, 2016. On June 23, 2016, the ALJ issued an unfavorable decision on Williams’s
application, finding her not disabled under the Social Security Act and thus not
entitled to benefits. (See R. 16 – 37).
The Commissioner’s decision on Williams’s application became final when the
Appeals Council for the Office of Disability Adjudication and Review denied her
request for review of the ALJ’s decision on June 29, 2017. (R. 1 – 5). Williams
subsequently filed this action under § 405(g) for judicial review of the
Commissioner’s final decision. See 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, 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.”).
II.
Standards of Review
“In Social Security appeals, [the Court] must determine whether the
“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she were insured.” Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (citing 42 U.S.C. § 423(a)(1)(A)
(2005)).
2
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
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
findings
of
fact.
No
similar
presumption
of
validity
attaches
to
the
[Commissioner]’s conclusions of law, including determination of the proper
Nevertheless, “[m]aking district courts dig through volumes of documents and
transcripts would shift the burden of sifting from petitioners to the courts. With a
typically heavy caseload and always limited resources, a district court cannot be
expected to do a petitioner’s work for him.” Chavez v. Sec'y Fla. Dep't of Corr., 647
F.3d 1057, 1061 (11th Cir. 2011) (28 U.S.C. § 2254 habeas proceedings). “[D]istrict
court judges are not required to ferret out delectable facts buried in a massive
record,” id., and “ ‘[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) (Fed. R. Civ.
P. 56 motion for summary judgment) (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).
3
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)).
This Court
“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
1260
(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.
1994).
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…requires that the claimant be disabled. 42 U.S.C.
§[] 423(a)(1)(E)…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)…
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
curiam) (unpublished).4
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
experience.
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
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.”).
4
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
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
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
quotation omitted).
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).
III.
Summary of the ALJ’s Decision
At Step One, the ALJ determined that Williams met the applicable insured
status requirements through December 31, 2017, and that she had not engaged in
substantial gainful activity since the alleged disability onset date, August 1, 2014.
(R. 21). At Step Two, the ALJ determined that Williams had the following severe
impairments: fibromyalgia, inflammatory arthritis, obesity, degenerative disc
disease post fusion, status post left knee arthroscopy, asthma, chronic pain
syndrome, depression, and anxiety disorder. (R. 21 – 22). At Step Three, the ALJ
found that Williams 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. 22 – 24).
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 Williams had the RFC “to perform light work as
defined in 20 CFR 404.1567(b)[6] except that she is able to stand/walk four hours
total in an eight hour workday[;] should never climb ladders, ropes, or scaffolds[;]
can climb ramps and stairs[; can] balance, stoop, kneel, crouch, and crawl
occasionally[;] can have no exposure to unprotected heights or hazardous
machinery[; and] is limited to simple and routine tasks, with occasional changes in
work setting and occasional interaction with the public. ” (R. 25 – 35).
Based on this RFC, the ALJ determined that Williams was unable to perform
any past relevant work. (R. 35). At Step Five, after considering testimony from a
vocational expert, the ALJ found that there exist significant numbers of jobs in the
national economy that Williams can perform given her RFC, age, education, and
work experience. (R. 36 – 37). Thus, the ALJ found that Johnson was not disabled
under the Social Security Act. (R. 37).
IV.
Analysis
Williams raises four claims of reversible error. For purposes of flow, the
undersigned will address them in a different order than Williams has presented
them.
a.
Evidence
First and Second Claims of Error – Medical Opinions
considered
by
the
Commissioner
determination may include medical opinions.
in
making
a
disability
See 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists
“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.
6
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) &
(e)). While “the ALJ is not required to explicitly address each of those factors[,]”
Lawton v. Comm'r of Soc. Sec., 431 F. App'x 830, 833 (11th Cir. 2011) (per curiam)
(unpublished), “the ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179.
Williams’s first and second claims of error collectively assert that the ALJ
reversibly erred in assigning greater weight to the opinions of two non-examining
physicians than the opinions of Williams’s treating physicians. 7 It is true that
“[t]he opinions of nonexamining, reviewing physicians,…when contrary to those of
the examining physicians, are entitled to little weight, and standing alone do not
constitute substantial evidence.” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir.
1987) (per curiam).
As such, “[t]he good cause required before the treating
physicians’ opinions may be accorded little weight is not provided by the report of a
nonexamining physician where it contradicts the report of the treating physician.”
Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988).
However, “the ALJ may reject any medical opinion if the evidence supports a
contrary finding.” Sharfarz, 825 F.2d at 280. Thus, “[i]f an ALJ has shown good
cause to reject the opinion of a treating or examining physician, the ALJ may then
properly rely on the opinion of a non-examining medical source if it is consistent
with the objective evidence of record.” Ethridge v. Berryhill, No. 1:16CV788-WC,
2017 WL 4780619, at *5 (M.D. Ala. Oct. 23, 2017) (Capel, M.J.) (citing cases). 8
“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician,
psychologist, or other acceptable medical source who provides[], or has provided[],[
the claimant] with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc.
Sec., 179 F. App'x 589, 591 (11th Cir. 2006) (per curiam) (unpublished) (quoting 20
C.F.R. § 404.1502).
7
Compare Sharfarz, 825 F.2d at 280-81 (“As we have observed, the only medical
opinions that support the finding that appellant can do medium work are those of
the nonexamining, nontreating physicians. The opinions of all of the treating and
examining physicians support the contrary finding. The ALJ provided no cause for
8
Accordingly, Williams is wrong to the extent she argues the ALJ was required as a
matter of law to adopt her treating physicians’ opinions over those of the nonexamining physicians.9
not according those latter opinions substantial or considerable weight. Thus, his
finding that appellant could return to his prior work was not supported by
substantial evidence. The case must be remanded to enable the Secretary to
reevaluate the medical evidence in accordance with the law.”), with Forsyth v.
Comm'r of Soc. Sec., 503 F. App'x 892, 893 (11th Cir. 2013) (per curiam)
(unpublished) (“[T]here is substantial evidence supporting the ALJ's conclusion that
there was good cause to afford more weight to the opinion of Dr. Goren, a
nonexamining board-certified neurologist, than to the opinions of Dr. Vernacchio
and Dr. Kantor, who were Forsyth's treating physicians…[Thus], the ALJ did not
err by giving more credence to Goren's conclusions than to those of Vernacchio and
Kantor.”), and Jarrett v. Comm'r of Soc. Sec., 422 F. App'x 869, 872-74 (11th Cir.
2011) (per curiam) (unpublished) (holding that ALJ did not err in crediting the
opinions of non-examining physicians where their opinions were supported by the
record and good cause existed for giving little weight to the treating physician’s
opinion).
Williams cites Dillard v. Astrue, 834 F. Supp. 2d 1325 (S.D. Ala. 2011) (Cassady,
M.J.), for the proposition that an ALJ “must include a residual functional capacity
assessment by a treating or examining physician.” (Doc. 13 at 3). Dillard is not
binding authority, see United States v. Cerceda, 172 F.3d 806, 812 n.6 (11th Cir.
1999) (en banc) (per curiam) (“The opinion of a district court carries no precedential
weight, even within the same district.”), and multiple judges of this Court have
since disavowed Dillard and similar district court decisions for that particular
proposition, including Dillard’s author. See, e.g., Jones v. Colvin, No. CA 14-00247C, 2015 WL 5737156, at *24 (S.D. Ala. Sept. 30, 2015) (Cassady, M.J.) (“In her brief,
Jones relies on one of this Court's prior decisions, Dillard v. Astrue, 834 F. Supp. 2d
1325 (S.D. Ala. 2011), for the proposition that the ALJ's RFC determination must be
supported by the assessment of an examining or treating physician…In order to
find that the ALJ's RFC assessment is supported by substantial evidence, however,
it is not necessary for the ALJ's assessment to be supported by the assessment of an
examining or treating physician…Therefore, the Court finds that Jones’ reliance on
Dillard is misguided, and her assertion that the ALJ's RFC determination must be
supported by the assessment of an examining or treating physician is without
merit.”); Pettaway v. Colvin, No. CV 15-0640-C, 2017 WL 62649, at *7 (S.D. Ala.
Jan. 5, 2017) (Cassady, M.J.); Denton v. Berryhill, No. CV 16-0423-MU, 2017 WL
3671164, at *12 (S.D. Ala. Aug. 24, 2017) (Murray, M.J.) (same); Packer v. Astrue,
No. CIV.A. 11-0084-CG-N, 2013 WL 593497, at *2-3 (S.D. Ala. Feb. 14, 2013)
(Granade, J.) (“[T]he Magistrate Judge cites Coleman v. Barnhart, 264 F. Supp. 2d
9
Williams next argues that the ALJ should have given controlling weight to
the opinions of the treating physicians, Drs. Tao Chen and Juan Ronderos, because
they are supported by the record.10 “Absent ‘good cause,’ an ALJ is to give the
1007 (S.D. Ala. 2003), in which this Court found reversible error where an ALJ's
determination was not directly supported by a treating or examining physician's
physical capacities evaluation (‘PCE’). However, the fact that no treating or
examining source submitted such a statement in this case does not, in and of itself,
mean that there is no medical evidence, much less no ‘substantial evidence,’ to
support the ALJ’s decision.”); Braggs v. Colvin, No. CV 15-00174-N, 2016 WL
1248917, at *8 n.11 (S.D. Ala. Mar. 29, 2016) (Nelson, M.J.) (“Braggs cites this
Court’s decision in Coleman v. Barnhart, 264 F. Supp. 2d 1007 (S.D. Ala. 2003)
(Granade, C.J.), for its holding that ‘the Commissioner’s fifth-step burden cannot be
met by ... the residual functional capacity assessment of a non-examining, reviewing
physician, but instead must be supported by the residual functional capacity
assessment of a treating or examining physician.’ 264 F. Supp. 2d at 1010. Coleman
did not cite any Eleventh Circuit authority in support of this
proposition…Moreover, this holding from Coleman has since been called into
doubt.” (citing Packer, 2013 WL 593497, at *2-3)); Reed v. Berryhill, No. CV 16000090-B, 2017 WL 3977924, at *3 (S.D. Ala. Sept. 11, 2017) (Bivins, M.J.) (“At the
outset, it should be noted that Plaintiff's contention that the ALJ's RFC assessment
is not based on substantial evidence simply because the record is devoid of a formal
RFC assessment by an examining medical source is incorrect. The ALJ's RFC
assessment may be supported by substantial evidence, even in the absence of an
opinion from an examining medical source about Plaintiff's functional capacity.”
(quotation omitted)). But see Baker v. Colvin, No. CV 16-0198-CG-M, 2016 WL
7662668, at *5 (S.D. Ala. Dec. 22, 2016) (Milling, M.J.), report and recommendation
adopted, 2017 WL 71658 (S.D. Ala. Jan. 6, 2017) (no objections filed). In light of the
Eleventh Circuit authority cited prior to this footnote, the undersigned is not
persuaded to follow Dillard here.
Williams also claims the ALJ improperly gave “no weight” to the “opinion” of
treating physician Dr. James Edwards. However, the undersigned agrees with the
Commissioner (see Doc. 14 at 5) that Dr. Edwards does not appear to have
submitted a “medical opinion” that the ALJ was required to specially consider. The
ALJ discussed Dr. Edwards’s treatment notes in her decision (see R. 24, 31) but did
not address any “opinion” by Dr. Edwards in considering the various medical
opinions in the record. The three pages of Dr. Edwards’s treatment records that
Williams cites in her brief (R. 1953, 1956, 1973) simply recite various diagnoses and
courses of treatment without offering any judgment on how those impairments
affect Williams’s ability to work, see Winschel, 631 F.3d at 1179 (explaining what
10
medical opinions of treating physicians ‘substantial or considerable weight.’ ”
Winschel, 631 F.3d at 1179 (quoting Lewis, 125 F.3d at 1440). “Good cause exists
‘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.’ With good cause,
an ALJ may disregard a treating physician's opinion, but he ‘must clearly articulate
[the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d
at 1240-41) (internal citation omitted).11 See also, e.g., Bloodsworth, 703 F.2d at
1240 (“[T]he opinion of a treating physician may be rejected when it is so brief and
conclusory that it lacks persuasive weight or where it is unsubstantiated by any
clinical or laboratory findings.”).
The ALJ gave Dr. Chen’s opinion “little weight” because he “did not provide a
constitutes a “medical opinion”), and she otherwise fails to explain what “opinion”
from Dr. Edwards the ALJ purportedly overlooked or improperly weighed.
Williams appears to suggest that Social Security Ruling (SSR) 96-2p, which
requires an ALJ to give “controlling weight” to a treating physician’s opinion if the
opinion “is well- supported and not inconsistent with the other substantial evidence
in the case record[,]” is more restrictive of an ALJ’s ability to reject treating
opinions than the Eleventh Circuit’s “good cause” standard. Even if it is, this Court
is bound to apply circuit precedent over the SSR. See Jones v. Comm'r of Soc. Sec.,
423 F. App'x 936, 939 n.4 (11th Cir. 2011) (per curiam) (unpublished) (“Social
Security Rulings are not binding on this Court. See B.B. v. Schweiker, 643 F.2d
1069, 1071 (5th Cir. Unit B Apr. 1981); see also Stein v. Reynolds Sec., Inc., 667 F.2d
33, 34 (11th Cir. 1982) (providing that we are bound by decisions issued by Unit B
panels of the former Fifth Circuit). To the extent [an] SSR []conflicts with [circuit
precedent], we are bound by [circuit precedent].”); Baker v. Comm'r of Soc. Sec., No.
17-13850, 2018 WL 1733234, at *2 n.2 (11th Cir. Apr. 10, 2018) (per curiam)
(unpublished) (SSR could not “supersede” circuit precedent “because it lacks the
‘force and effect of the law.’ ” (quoting Heckler v. Edwards, 465 U.S. 870, 874 n.3
(1984))).
11
detailed explanation for his assessment,” and because evidence, including
Williams’s activities of daily living, supported a contrary finding, with the ALJ
noting specific examples. (See R. 33 – 34). All of these reasons are “good cause” to
reject a treating physician’s opinion.
See Winschel, 631 F.3d at 1179; Crow v.
Comm'r, Soc. Sec. Admin., 571 F. App'x 802, 806 (11th Cir. 2014) (per curiam)
(unpublished) (“[E]vidence of Crow's daily activities also provided good cause to
discount his treating physician's opinion.” (citing Phillips, 357 F.3d at 1241)). The
ALJ gave the “various opinions” of Dr. Ronderos “partial weight” because “they are
temporary and postoperative recovery instructions not intended to be reflective of a
long-term limitation,” noting that “Dr. Ronderos released the claimant to follow up
as needed with no recommendation for long term or permanent restrictions.” (R.
34). In other words, the ALJ found that Dr. Ronderos’s own treatment records did
not support giving long-term effect to his opinions.
This too was good cause.
Winschel, 631 F.3d at 1179. Williams fails to acknowledge the ALJ’s stated reasons
for discounting the treating physicians’ opinions and has made no showing why they
are not supported by the record. At most, Williams cites some other evidence in the
record bolstering those opinions.12 However, “[w]here our limited review precludes
re-weighing the evidence anew, Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir.1996),
and as the ALJ articulated specific reasons for failing to give [the treating
To the extent Williams argues that records submitted to the Appeals counsel
provide “persuasive corroborating evidence” for the treating physicians’ opinions
(see Doc. 13 at 9), the Court cannot consider that evidence in determining whether
the ALJ’s decision is supported by substantial evidence. See Falge, 150 F.3d at
1324.
12
physicians’] opinion[s] controlling weight,” the Court “find[s] no reversible error.”
Moore, 405 F.3d at 1212.
Finally, Williams argues that the ALJ should not have relied on the nonexamining physicians’ opinions because they “were made at a time when all medical
evidence was not of record” and were thus “unsupported” and “premature.” (Doc. 13
at 8). 13 However, the ALJ thoroughly summarized the record evidence in her
decision and explained that she gave “great weight” to the non-examiner opinions
because they were largely consistent with that evidence.
(See R. 32 – 33). Thus,
the ALJ adequately demonstrated that she considered other evidence in conjunction
with the non-examiner opinions in reaching her RFC,14 and Williams does not argue
that this other evidence was insubstantial. Thus, she has failed to show reversible
error in the ALJ’s reliance on the non-examiner opinions.15
The ALJ also assigned “partial weight” to the opinion of consultative examiner
Dr. Kenneth Starkey and articulated specific reasons why. (R. 33). As the
Commissioner correctly notes (see Doc. 14 at 5), Williams makes some reference to
Dr. Starkey’s opinion in her brief but asserts no specific error in the ALJ’s
consideration of that opinion.
13
See Jarrett, 422 F. App'x at 873 (“Regulations require that an ALJ consider the
opinions of non-examining physicians, including state agency psychological
consultants. 20 C.F.R. § 404.1527(f). The weight due to a non-examining physician’s
opinion depends, among other things, on the extent to which it is supported by
clinical findings and is consistent with other evidence. See id. § 404.1527(d)(3)–(4);
see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158, 1160 (11th Cir. 2004)
(holding that the ALJ did not err in relying on a consulting physician's opinion
where it was consistent with the medical evidence and findings of the examining
physician). Generally, the more consistent a physician’s opinion is with the record
as a whole, the more weight an ALJ should place on that opinion. 20 C.F.R. §
404.1527(d)(4).”).
14
15
See Flowers v. Comm'r of Soc. Sec., 441 F. App'x 735, 740 (11th Cir. 2011) (per
Accordingly, the Court OVERRULES Williams’s first and second claims of
error.
b.
Fourth Claim of Error – VE Testimony
At Step Five, the ALJ, relying on the testimony of a vocational expert, found
that Williams could perform the jobs of food prep work, mail clerk, and “folder,
textile, or laundry,” considering her age, education, work experience, and RFC, and
that such jobs exist in significant numbers in the national economy. (R. 36). In her
fourth claim of error, Williams asserts that the RFC “precludes the performance” of
those jobs because the RFC limited Williams to standing and walking only four
hours in an eight-hour workday, while the Dictionary of Occupational Titles (DOT)
curiam) (unpublished) (“A non-examining doctor's opinion that contradicts an
examining doctor's medical report is accorded little weight and cannot, standing
alone, constitute substantial evidence. Edwards v. Sullivan, 937 F.2d 580, 584 (11th
Cir. 1991). However, the ALJ may rely on a non-examining physician's opinion if it
does not contradict the examining physician’s medical findings or test results in the
medical report. See id. at 585…The ALJ articulated good cause for giving very little
weight to the opinions of Drs. Raber and Lubin as to Flowers’s RFC. Moreover, the
ALJ was entitled to rely on Dr. Caldwell's opinion because it was consistent with
the treating and examining physicians' underlying clinical findings. See Edwards,
937 F.2d at 584–85 (concluding that the ALJ properly relied on the consulting, nonexamining doctor's opinion because it was not inconsistent with the results of the
tests administered by the examining doctor and provided an interpretation of
Edwards’s limitations not found in the examining doctor’s report). Thus, although
an ALJ generally gives treating and examining physicians' opinions more weight,
here the ALJ was not required to do so.”); Brown v. Comm'r of Soc. Sec., 442 F.
App'x 507, 512–13 (11th Cir. 2011) (per curiam) (unpublished) (“Next, the ALJ did
not err in giving more weight to Dr. Williams's opinion than to Kennedy's or Wood's
opinions. The ALJ was not required to accord ‘little weight’ to Williams's report
because it did not contradict Kennedy's treatment records or Wood’s exam results.
Edwards, 937 F.2d at 584…Furthermore, because Williams's opinions were
consistent with Kennedy's and Wood's medical evidence, it is not Williams's report
alone that constitutes the substantial evidence supporting the ALJ's decision. See
Edwards, 937 F.2d at 584.”).
lists each of those jobs as entailing “significant standing/walking.” (Doc. 13 at 13).
Thus, she claims, the VE’s testimony is inconsistent the DOT and therefore not
substantial evidence satisfying the Commissioner’s Step Five Burden.
Even if the VE’s testimony is inconsistent with the DOT, however, it is
settled law in this circuit that “when the VE's testimony conflicts with the DOT, the
VE's testimony ‘trumps’ the DOT.” Jones v. Apfel, 190 F.3d 1224, 1229–30 (11th
Cir. 1999). 16 To the extent SSR 00-4p or the SSA’s Production and Operations
Management Society (POMS) might provide otherwise, as Williams asserts, neither
of those documents permits this Court to disregard this clear precedent.17 Because
Accord, e.g., Mabrey v. Acting Comm'r of Soc. Sec. Admin., 724 F. App'x 726, 730
(11th Cir. 2018) (per curiam) (unpublished) (“Where there is conflict between the
Dictionary of Occupational Titles (‘DOT’) and a vocational expert’s testimony, an
ALJ may rely solely on a vocational expert’s testimony. See Jones v. Apfel, 190 F.3d
1224, 1226, 1229–30 (11th Cir. 1999).”); Chambers v. Comm'r of Soc. Sec., 662 F.
App'x 869, 872 (11th Cir. 2016) (per curiam) (unpublished) (“If there is a conflict
between the DOT and the jobs identified by a vocational expert in response to the
hypothetical question, the testimony of the vocational expert outweighs the DOT
because the DOT is not the sole source of admissible information concerning jobs.
Jones v. Apfel, 190 F.3d 1224, 1229–30 (11th Cir. 1999).”).
16
See Baker, 2018 WL 1733234, at *2 n.2 (“Baker asserts that a Social Security
Administration ruling titled SSR 00-4p ‘superseded’ our Jones decision. That ruling
cannot have superseded Jones because it lacks the force and effect of the law.
Undeterred, Baker invites us to ‘publish a written decision finding that [SSR 00-4p]
is entitled to great respect and deference.’ We cannot accept that invitation because
we are bound to apply the rule from Jones unless it is overruled by the Supreme
Court or by this Court sitting en banc.” (citation and quotation omitted)); Jones v.
Comm'r of Soc. Sec., 423 F. App’x at 939 n.4 (“Jones cites SSR 00–4p, which
provides that ‘[n]either the DOT nor the [VE's testimony] automatically “trumps” ’
and instructs the ALJ to ‘elicit a reasonable explanation’ for a conflict between the
two before relying on the VE's testimony. SSR 00–04p, 2000 WL 1898704 (Dec. 4,
2000). Social Security Rulings are not binding on this Court…To the extent SSR
00–4p conflicts with Jones, we are bound by Jones.”); Wells v. Comm'r of Soc. Sec.,
430 F. App'x 785, 786 (11th Cir. 2011) (per curiam) (unpublished) (“[W]e have
17
Williams has failed to show reversible error in the ALJ’s reliance on the VE’s
testimony at Step Five,18 her fourth claim of error is OVERRULED.
c.
Third Claim of Error – New Evidence to Appeals Council
“With a few exceptions, the claimant is allowed to present new
evidence at each stage of this administrative process,” including before
the Appeals Council. Ingram v. Comm'r of Soc., Sec. Admin., 496 F.3d
1253, 1261 (11th Cir. 2007). The Appeals Council has the discretion
not to review the ALJ’s denial of benefits. See 20 C.F.R. § 416.1470(b).
But the Appeals Council “must consider new, material, and
chronologically relevant evidence” that the claimant submits. Ingram,
496 F.3d at 1261; see also 20 C.F.R. §§ 404.970(b), 416.1470(b).
Washington v. Soc. Sec. Admin., Com'r, 806 F.3d 1317, 1320 (11th Cir. 2015) (per
curiam).
In its order denying Williams’s request for review of the ALJ’s decision, the
Appeals Council explained that the additional evidence she submitted to it – 14
pages of “medical records from Sacred Heart Medical Group dated March 15, 2016
through May 4, 2016” (R. 2; see also R. 44 – 57) – “does not show a reasonable
stated that, although the SSA’s POMS can be persuasive, it does not have the force
of law. Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003)…[T]herefore, the
Commissioner’s alleged failure to adhere to the POMS does not entitle Wells to
child’s insurance benefits.”).
At the ALJ hearing, the VE reduced his estimated number of available jobs by 20
percent “for purposes of making accommodation for the four hours of standing.” (R.
84). Williams complains that “it is unclear whether the Vocational Expert is
reducing the number to provide a sit/stand option or a standing/walking limitation,
as is described in the RFC.” (Doc. 13 at 13). The undersigned rejects Williams’s
attempt to manufacture ambiguity; the ALJ’s hypothetical preceding the VE’s
response clearly asked the VE to assume, inter alia, an individual for whom
“standing and walking is limited to four hours, total, in an eight hour workday.” (R.
84). Moreover, the undersigned agrees with the Commissioner that Williams is not
clear as to how this purported ambiguity constitutes reversible error.
18
probability that it would change the outcome of the decision” (i.e., that the new
evidence was not “material”19); therefore, the Appeals Council “did not consider and
exhibit this evidence.” (R. 2). When, as here, “ ‘the Appeals Council refuses to
consider new evidence submitted to it and denies review, that decision is ... subject
to judicial review....’ ” Washington, 806 F.3d at 1320 (quoting Keeton v. Dep't of
Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). “[W]hether evidence
meets the new, material, and chronologically relevant standard is a question of law
subject to our de novo review.” Id. at 1321 (quotation omitted). Therefore, “when
the Appeals Council erroneously refuses to consider evidence, it commits legal error
and remand is appropriate.” Id.20
See Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (evidence is “material”
when it is “relevant and probative so that there is a reasonable possibility that it
would change the administrative result”).
19
The case law relied on by both Williams and the Commissioner in briefing
this claim is inapposite. As in Washington, “[t]his is not a case in which the
Appeals Council considered the additional evidence and then denied review. When
the Appeals Council accepts additional evidence, considers the evidence, and then
denies review, it is not ‘required to provide a detailed rational for denying review.’
Mitchell v. Comm'r, Soc., Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014). But we
are addressing a different issue in this case: whether the Appeals Council
committed legal error when it refused to consider the claimant’s additional
evidence.” 806 F.3d at 1321 n.5.
Because judicial review of such a refusal is de novo, the Court owes no
deference to the Appeals Council’s factual or legal determinations underlying the
refusal. Therefore, Williams’s suggestion that the Appeals Council should be
required, as an additional matter of law, to provide a detailed explanation for its
refusal makes little practical sense. To the extent Williams claims that Epps v.
Harris, 624 F.2d 1267 (5th Cir. 1980), requires such a detailed explanation, the
Eleventh Circuit has observed that “Epps has little bearing on a denial of a request
for review” because “the decision in Epps arose in a different procedural context,
where the Appeals Council affirmed the decision of the administrative law judge.”
Parks ex rel. D.P. v. Comm'r, Soc. Sec. Admin., 783 F.3d 847, 853 (11th Cir. 2015)
20
In arguing that the additional evidence she submitted to the Appeals Council
is material, Williams directs attention to the following portion of the ALJ’s decision,
which immediately follows the ALJ’s discussion of Dr. Ronderos’s opinions:
At the claimant’s first pain management visit after surgery in April
2015, a nurse practitioner documents “lumbar failed back surgery”
apparently based on claimant’s subjective report of symptoms. [(R.
1876)]. This notation repeats later in the pain management notes and
may have been endorsed by a treating or examining physician or
simply copied from earlier to later progress notes. To the extent this
notation expresses an opinion or suggests greater limitation than
included in the residual functional capacity, it is assigned little weight
because there is no persuasive corroborating evidence for this
assessment in Pinnacle neurosurgical records, physical therapy
records, or even in the pain management notes. The objective findings
documented by Dr. Ronderos at post-surgical examinations and the
claimant’s gradually increased ability to work out for longer periods at
the gym as documented in physical therapy records, go canoeing and
travel 14 hours to help a friend, strongly suggests her back surgery is
not “failed.”
(R. 34). Williams appears to suggest that the new evidence corroborates the nurse
practitioner’s “lumbar failed back surgery” notation. While the undersigned agrees,
Williams fails to convince the undersigned that the Appeals Council erred in finding
the new evidence to be immaterial.
The new evidence consists of treatment notes from four visits with the Sacred
Heart Medical Group in 2016. At the first, occurring March 15, 2016, Dr. Ronderos
documented Williams’s complaints of pain in her back, buttocks, and lower
extremities. (R. 53). After noting “normal” findings on physical exam, Dr. Ronderos
(citing Mitchell v. Comm'r, Soc., Sec. Admin., 771 F.3d 780, 783 (11th Cir. 2014))
(quotation omitted).
set Williams for surgery to remove a left pedicle screw (discovered through a
lumbosacral spine CT) and imposed certain working restrictions: “unable to work
for: 3-6 weeks[;] no maximum lifting over 20 pounds[;] alternate sitting/standing,
may walk short distances.” (R. 55). At the second visit, occurring March 29, 2016,
Dr. Ronderos again documented “normal” physical exam findings, reiterated that
Williams was set for surgery for “removal [of] Left sided hardware,” and stated she
would be “unable to work for: 4 weeks.” (R. 51 - 52). He also assessed Williams
with “failed back syndrome” and “low back pain.” (R. 51).
At the third visit, occurring April 13, 2016, ten days following Williams’s
surgery, examiner Kevin Hites noted that Williams was “healing well” and that she
“will keep her follow up appt.” (R. 47 – 48). Hites also assessed her with “low back
pain.” (R. 48). At the last visit, on May 4, 2016, Dr. Ronderos again documented
“normal” physical exam findings, and assessed “low back pain,” “failed back
syndrome,” and “hyperlipidemia.” (R. 46). Dr. Ronderos also noted there were “no
surgical
options
available
for”
Williams
and
discharged
her
from
care,
recommending that she “continue with current medications as prescribed” by her
physicians and opining that her “pain can be addressed with conservative measures
at this time.” (R. 46).
The ALJ made clear that her decision to specially address the nurse
practitioner’s April 2015 notation of “lumbar failed back surgery,” and to treat it as
a possible medical opinion, was made out of an abundance of caution because the
ALJ could find no objective record evidence to corroborate that diagnosis. While the
new evidence submitted to the Appeals Council does provide the corroboration that
was lacking with the ALJ, it also shows that the ALJ need not have specially
addressed the nurse practitioner’s notation as a medical opinion. Moreover, the
new evidence consistently documented “normal” physical findings, and as with Dr.
Ronderos’s 2015 opinions that the ALJ addressed in her decision, they provided
“temporary and postoperative recovery instructions not intended to be reflective of a
long-term limitation.”
(R. 34). Finally, the new evidence is consistent with the
ALJ’s finding that “[t]he objective findings documented by Dr. Ronderos at postsurgical examinations” and Williams’s post-surgery activities of daily living
“strongly suggests her back surgery is not ‘failed.’ ” (R. 34).
Williams has not shown that there is a reasonable possibility the evidence
submitted to the Appeals Council would have changed the ALJ’s decision.
Accordingly, the Appeals Council did not err in declining to consider it, and the
Court OVERRULES Williams’s third claim of error. Having overruled all claims of
error raised, the Court therefore finds that the Commissioner’s final decision
denying Williams benefits is due to be AFFIRMED.
V.
Conclusion
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s decision Williams’s application for a period of disability and DIB,
made final by the Appeals Council’s denial of review on June 29, 2017, is
AFFIRMED under sentence four of 42 U.S.C. § 405(g).
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 2nd day of July 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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