Jones v. Berryhill

Filing 29

MEMORANDUM OPINION AND ORDER that the Commissioner's final decision denying plaintiff's application for SSI is REVERSED and REMANDED under sentence four of 42:405(g) for further proceedings. Signed by Magistrate Judge Katherine P. Nelson on 10/11/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
YASHICA C. JONES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:17-00416-N

MEMORANDUM OPINION AND ORDER
Plaintiff Yashica C. Jones brought this action under 42 U.S.C. § 1383(c)(3)
seeking judicial review of a final decision of the Defendant Commissioner of Social
Security (“the Commissioner”) denying her application for supplemental security
income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
Upon consideration of the parties’ briefs (Docs. 17, 21) and those portions of the
administrative record (Doc. 16) (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 May 17, 2018, the Court finds that the Commissioner’s final
decision is due to be REVERSED and REMANDED to the Commissioner under
sentence four of § 405(g) (applicable to SSI claims under § 1383(c)(3)) for further
administrative proceedings.1

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. 24, 25).
1

I.

Background

On February 27, 2014, Jones filed an application for SSI with the Social
Security Administration (“SSA”), alleging disability beginning May 16, 2007.2 After
her application was initially denied, Jones requested a hearing before an
Administrative Law Judge (“ALJ”) with the SSA’s Office of Disability Adjudication
and Review. Hearings were held with an ALJ on October 23, 2015, and June 3,
2016. On September 29, 2016, the ALJ issued an unfavorable decision on Jones’s
application, finding her not disabled under the Social Security Act and thus not
entitled to benefits. (See R. 14 – 29).
The Commissioner’s decision on Jones’s application became final when the
Appeals Council for the Office of Disability Adjudication and Review denied Jones’s
request for review of the ALJ’s decision on August 24, 2017. (R. 1 – 5). Jones
subsequently filed this action under § 1383(c)(3) for judicial review of the
Commissioner’s final decision. See 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, irrespective of the
“Title XVI of the [Social Security] Act provides for the payment of disability
benefits to indigent persons under the Supplemental Security Income (SSI)
program. [42 U.S.C. ]§ 1382(a).” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). “For
SSI claims, a claimant becomes eligible in the first month where she is both
disabled and has an SSI application on file.” Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam) (citing 20 C.F.R. § 416.202–03 (2005)).
2

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
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

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
3

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).
See also McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986) (“We are
constrained to conclude that the administrative agency here…reached the result
that it did by focusing upon one aspect of the evidence and ignoring other parts of
the record. In such circumstances we cannot properly find that the administrative
decision is supported by substantial evidence. It is not enough to discover a piece of
evidence which supports that decision, but to disregard other contrary evidence.
The review must take into account and evaluate the record as a whole.”).
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
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
& 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).

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…SSI requires that the claimant be disabled. 42 U.S.C.
§…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.
§…1382c(a)(3)(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
“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
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.”).
5 The undersigned will hereinafter use “Step One,” “Step Two,” etc. when
referencing individual steps of this five-step sequential evaluation.
4

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). 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.
III.

Summary of the ALJ’s Decision

At Step One, the ALJ determined that Jones had not engaged in substantial
gainful activity since February 27, 2014, her SSI application date. (R. 19). At Step
Two, the ALJ determined that Jones had the following severe impairments:
migraine headaches, hypertension, obesity, diabetes, and depression. (R. 19 – 20).
At Step Three, the ALJ found that Jones 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. 20 – 22).
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 Jones had the RFC “to perform many elements of a
light range of work as defined in 20 CFR 416.967(b),[6] but not a ‘full range’ of such
work (SSR 83-10).

For instance, she can only occasionally bend, squat, crouch,

kneel, and stoop, i.e. primarily due to her obesity.

The claimant cannot climb

ladders, scaffolds, or ropes or crawl. The claimant can occasionally ascend and
descend stairs and frequently ascend and descend ramps. The claimant cannot
work around unprotected heights or dangerous moving machinery secondary to her

“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. § 416.967.
6

history of migraine headaches. She cannot operate motor vehicles or industrial
equipment. The claimant needs to work within a climate-controlled setting because
of her history of hypertension. The claimant can perform unskilled, routine and
repetitive types of work and can remember, understand, and carry out assignments
and instructions for two-hour increments over an 8-hour day. The claimant can
tolerate just occasional changes in her work setting or work routine and can only
make occasional decisions when on the job.” (R. 22 – 27).
The ALJ then determined that Jones had no past relevant work. (R. 27). At
Step Five, based on testimony from the vocational expert, the ALJ found that there
exist a significant number of jobs in the national economy that Jones could perform
given her RFC, age, education, and work experience. (R. 27 – 28). Thus, the ALJ
found that Jones was not disabled under the Social Security Act. (R. 28 – 29).
IV.
Evidence

considered

by

the

Analysis
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
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. “Absent
‘good cause,’ an ALJ is to give the medical opinions of treating physicians
‘substantial or considerable weight.’ ” Id. (quoting Lewis, 125 F.3d at 1440). On the
other hand, an ALJ is not required to afford special deference to the opinions of nontreating physicians, see McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per
curiam), and an “ALJ may reject any medical opinion if the evidence supports a
contrary finding.”

Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (per

curiam).
Jones’s sole claim is that the ALJ reversibly erred in partially rejecting the
opinion of Dr. Haynes, a non-examining medical expert who testified at the June 3,
2016 ALJ hearing.7 Specifically, while the ALJ gave “great weight” to Dr. Haynes’s
opinion that Jones “should avoid hazardous work situations, such as working
around moving machinery and unprotected heights,” the ALJ gave “little weight” to
Dr. Haynes’s statement that Jones “could be expected to miss two or three days of
work per month because of her [migraine] headaches…” (R. 23 – 24).8 The ALJ
summarized Dr. Haynes’s testimony regarding Jones’s migraine headaches as

Medical experts (MEs) “are physicians, mental health professionals, and other
medical professionals who provide impartial expert opinion at the hearing level on
claims under title II and title XVI of the Social Security Act. []MEs provide opinions
by either testifying at a hearing or responding to written interrogatories…The
primary reason an ALJ will request an ME opinion is to help the ALJ evaluate the
medical evidence in a case.” HALLEX I-2-5-32(A)-(B). “An ME’s opinion is not
binding on an ALJ[,]” who must evaluate it like any other medical opinion. Id. I-25-32(B). Dr. Haynes does not appear to have submitted a written report into the
record, and the hearing transcript indicates that Dr. Haynes should be deemed a
non-examining physician, as he testified that he had only reviewed the
administrative record and listened to Jones’s hearing testimony prior to giving his
opinions. (R. 56 – 57). This is consistent with SSA policy. See HALLEX I-2-5-34(A)
(“An ALJ will never ask or permit an ME to perform an examination of a claimant.
If an ALJ finds an examination is necessary because there is not enough evidence
about an impairment(s) for the ALJ to make a finding, the ALJ will request a
consultative examination.”). Generally, “[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,
825 F.2d at 280. However, the Commissioner does not argue that Dr. Haynes’s
status as a non-examining physician should be a factor in whether the ALJ erred in
partially rejecting his opinion.
7

At the June 3, 2016 ALJ hearing, a vocational expert testified that such a level of
absenteeism would render an individual “unable to maintain full-time
employment…” (R. 71).
8

follows:
Dr. Haynes…testified that the claimant’s treatment for her headaches
has “not been optimized” and that she “could do better” with
appropriate treatment. According to Dr. Haynes, the claimant should
be under the care of a neurologist and her treatment regimen should
include not only prescription medication but also dietary changes and
other changes to her daily activities. The claimant has seen a
neurologist in the past, Dr. Shaikh, but his was described as just a
“cursory evaluation.” Dr. Haynes observed that the claimant is
prescribed Esgic, which is “part of the problem” and “not a very good
lifetime plan” because it can cause rebound headaches. Rather, there
are better medications available to treat migraines, such as Topamax.
Dr. Haynes further suggested the claimant’s headaches could be due in
part to her elevated blood pressure. He emphasized that it was
medically unlikely her headaches are related to any structural brain
abnormality referenced in a brain MRI study conducted in June 2014
(see Exhibit 7F).
(R. 23). The ALJ explained that he gave “little weight to the opinion of Dr. Haynes
regarding the amount of work the claimant could be expected to miss” because it
“was based on [Jones]’s current treatment, which is suboptimal[,]” and because “Dr.
Haynes testified that [Jones]’s treatment could be ‘markedly improved.’ ” (R. 24).
The ALJ then proceeded to discuss other record evidence relevant to Jones’s
headaches, as follows:
The claimant testified at the June 2016 hearing that she no longer has
Medicaid; however, she had insurance throughout most of the
adjudication period at issue, but still did not regularly see a
neurologist. She sought occasional treatment at Franklin Primary
Health Center but was prescribed the same medication – Imitrex and
Valproic Acid – for several years (Exhibits B3F, B6F, B10F).
Moreover, it is not clear that the claimant is taking her medication as
prescribed. For example, according to the claimant’s pharmacy
records, she did not fill a prescription for either of these medications or
any other medication to treat migraine headaches from Rite Aid

pharmacy for the period from September 2014 through September
2015 (Exhibit B14E). Dr. Haynes testified that there were better
medications to treat migraines than what the claimant was not [sic]
currently taking, such as Topamax. The claimant was prescribed
Topamax by her treating mental health provider in September 2015 to
treat a mood disorder but also to use as a prophylactic to treat her
migraines (Exhibit B11F). The claimant never the [sic] filled the
prescription (Exhibit B15F) even though she had Medicaid at the time.
Indeed, she acknowledged at the supplemental hearing in June 2016
that she is not taking any maintenance medications. The claimant
also routinely denied having a headache to her primary care providers;
and her neurological exams have generally been within normal limits.
She did not complain of a headache to her treating primary care
provider at either office visit in 2015 (Exhibit B10F). The claimant
went back to see Dr. Shaikh, a neurologist, in September and October
2015 (Exhibit B12F). She last saw him prior to then back in March
2013 (Exhibit B1F). Dr. Shaikh prescribed Esgic and Maxalt (Exhibit
B12F). The claimant testified that Esgic works “wonderful” and helps
“a whole lot.” Yet, Dr. Haynes testified that Esgic will often cause
difficulty with rebound headaches.
The claimant has also been seen in the emergency room a number of
times for treatment of an acute migraine headache (Exhibits B2F,
B7F). The claimant’s headaches generally resolved with treatment
and she was discharged home in stable condition. There is no evidence
in the record, however, that the claimant has required emergency room
treatment for a migraine headache since 2014. She presented to the
emergency room on two occasions in 2015 for treatment of elevated
blood pressure but she specifically denied having a headache (Exhibit
B9F). The claimant was briefly admitted to the hospital in June 2014
for evaluation of a possible stroke secondary to elevated blood pressure
(Exhibit B7F). An MRI of her brain showed a structural abnormality.
Dr. Haynes testified that the claimant’s headaches were not likely
related to the structural abnormality but that this is a “loose end.”
Additional testing, such as a spinal tap, would be necessary to further
evaluate the significance of the abnormality but no other testing was
ordered. Moreover, the claimant’s treating hospital physician read the
MRI as negative (Exhibit B7F p.14). A CT scan and CT angiogram
were also negative, as was an earlier CT scan of the claimant’s brain

taken in June 2013 (Exhibit B2F). The claimant was diagnosed with
hypertensive urgency and history of migraines, not a stroke. She was
discharged home in stable condition without any evidence of focal
neurological deficits.
The claimant has not required additional
inpatient treatment for any medical condition since June 2014.
(R. 24 – 25).
Dr. Haynes was the only medical professional who offered a specific opinion
on the number of work days Jones could be expected to miss due to her headaches.9
As one ground for rejecting Dr. Haynes’s absenteeism opinion, the ALJ found that
Jones was not complying with her prescribed migraine treatment, noting “it is not
clear that the claimant is taking her medication as prescribed.” (R. 24). It is true
that the Social Security “regulations provide that refusal to follow prescribed
medical treatment without a good reason will preclude a finding of disability.”
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (citing 20 C.F.R. §
416.930(b)). However, “[i]n order to deny benefits on the ground of failure to follow
prescribed treatment, the ALJ must find that had the claimant followed the
prescribed treatment, the claimant’s ability to work would have been restored[, and
t]his finding must be supported by substantial evidence.” Id. See also 20 C.F.R. §
416.930(a) (““In order to get benefits, [a claimant] must follow treatment prescribed
by [her] medical source(s) if this treatment is expected to restore [her] ability to
work.”). Here, however, the ALJ adopted Dr. Haynes’s opinion that Jones’s current
headache treatment was “suboptimal” and could be “markedly improved,” and that

Examining neurologist “Dr. Yager opined that [Jones] might miss some work at
times because of her migraine headaches” but “did not specifically indicate how
much work [Jones] could be expected to miss…” (R. 23 – 24).
9

the medication she was taking for her migraines “will often cause difficulty with
rebound headaches.” (R. 24). In effect, then, the ALJ determined that Jones’s
absenteeism from work, as opined by Dr. Haynes, would not have been improved
even if she had been following her prescribed treatment.

As such, the ALJ’s

reliance on Jones’s purported noncompliance as a basis for rejecting Dr. Haynes’s
absenteeism opinion is contradicted by the ALJ’s own reasoning.
The ALJ also improperly relied on Dr. Haynes’s testimony that Jones’s
migraine headache treatment was “suboptimal” and could be “improved” as a
rationale for discounting Dr. Haynes’s absenteeism opinion. Whatever the merits of
Dr. Haynes’s criticism of Jones’s migraine treatment, his absenteeism opinion was
based on the treatment Jones was actually receiving, and Jones can hardly be
penalized for failing to follow an alternative treatment plan that she was never
prescribed.10 Moreover, Dr. Haynes did not testify that his recommended course of
treatment would actually restore Jones’s ability to work by reducing the number of
absences caused by her migraines (see R. 56 – 64), and the ALJ cited no evidence to
The ALJ did note that Jones failed to fill a September 15, 2015 prescription for
Topamax, which Dr. Haynes opined was superior to the migraine medication she
was taking. (R. 24). However, as counsel for Jones correctly pointed out at oral
argument, the Topamax was prescribed by Jones’s treating mental health provider
AltaPointe Health Systems, which prescribed it for “its beneficial mood stabilization
and its prophylactic use for migraine headaches” after Jones told the AltaPointe
examiner at the September 15, 2015 examination that she was experiencing a
migraine. (R. 522). On the other hand, those health care providers from which
Jones specifically sought migraine treatment, Franklin Primary Health Center and
neurologist Dr. Shaikh, prescribed her other medications, both before and after
AltaPointe issued the Topamax prescription. (R. 24). Accordingly, Jones’s failure to
fill the one-time Topamax prescription cannot reasonably be classified as a refusal
to follow prescribed migraine treatment.
10

support his inferential leap that it would. 11 Particularly given that examining
neurologist Dr. Yager, to whose opinion the ALJ gave “partial weight,” also opined
that Jones “might miss some work at times because of her migraine headaches” (R.
23 – 24), the ALJ’s unsupported speculation that the “marked” improvements in
Jones’s migraine treatment recommended by Dr. Haynes would reduce Jones’s
absenteeism to non-disabling levels cannot serve as a basis for rejecting Dr.
Haynes’s absenteeism opinion.
Finally, while he did not explicitly say so, the ALJ appears to have also
determined that Dr. Haynes’s absenteeism opinion was not consistent with Jones’s
migraine treatment history.

The ALJ’s explanations for this determination,

however, are unconvincing. Though the ALJ found that Jones “routinely denied
having a headache to her primary care providers” and that “her neurological exams
have generally been within normal limits” (R. 24), the exhibits to which the ALJ
cites in support of this finding (B1F, B10F, and B12F) consistently note complaints
and diagnoses of headaches/migraines, with Franklin Primary records listing
“migraine, unspecified with intractable migraines” as a chronic problem. (See R.
337, 501, 509, 510, 516, 517, R. 526). The ALJ also observes that, despite having
“been seen in the emergency room a number of times for treatment of an acute
migraine headache[,]” Jones has not “required emergency room treatment for a
migraine headache since 2014.”

(R. 24).

However, the mere fact that Jones’s

As Jones’s brief correctly notes, several parts of Dr. Haynes’s hearing testimony
are omitted from the transcript as “inaudible,” including his absenteeism opinion.
However, this obviously did not prevent the ALJ from noting and addressing the
absenteeism opinion in his decision.
11

migraines have not required emergency room treatment, by itself, is not
inconsistent with the determination that they may still be so severe as to
necessitate missing several days of work a month. Finally, while the ALJ also
repeatedly cites “normal” neurological exams, these observations are conclusory and
fail to adequately explain how the exams contradict Dr. Haynes’s opinion.
In sum, because the undersigned cannot conclude that the ALJ’s given
reasons for rejecting Dr. Haynes’s absenteeism opinion are rational and supported
by substantial evidence, reversal is required. Winschel, 631 F.3d at 1179. Jones
requests that the Commissioner’s decision “be reversed and [Jones] found
disabled[,]” and only requests a remand for further proceedings in the alternative.
(Doc. 17 at 4).

The United States Supreme Court has cautioned that a court

reviewing an agency decision “is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own conclusions based on
such an inquiry. Rather, the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation.” INS v. Orlando
Ventura, 537 U.S. 12, 16 (2002) (citation and quotations omitted).

While the

Eleventh Circuit has recognized that a district 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[,]” Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.
1993), Jones has failed to convince the undersigned that this standard is met here.12

12

Compare Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991) (“The

The lone error identified by both Jones and the Court was that the ALJ failed to
give sufficient reasons for rejecting part of the opinion of a non-examining
physician, and the undersigned is not convinced that there are no grounds on which
the Commissioner might still properly reject Dr. Haynes’s absenteeism opinion on
remand. See Mason v. Berryhill, No. CV 1:17-00378-N, 2018 WL 3341788, at *8
n.14 (S.D. Ala. July 6, 2018) (“[A]n ALJ is not required to afford special deference to
the opinions of non-treating physicians, see McSwain v. Bowen, 814 F.2d 617, 619
(11th Cir. 1987) (per curiam), and ‘is free to reject the opinion of any physician when
the evidence supports a contrary conclusion.’ Sryock, 764 F.2d at 835 (quotation
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
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).

omitted).”).
Accordingly, the Court finds that the Commissioner’s final decision denying
Jones SSI is due to be REVERSED and REMANDED to the Commissioner under
sentence four of § 405(g) for further administrative proceedings consistent with this
decision.

On remand, the Commissioner is not required to give Dr. Haynes’s

absenteeism opinion any particular weight. However, the Commissioner must state
with particularity the weight given to the opinion and the reasons therefor, and
those conclusions must be rational and supported by substantial evidence.
Winschel, 631 F.3d at 1179. See also Tavarez v. Comm'r of Soc. Sec., 638 F. App'x
841, 847 (11th Cir. 2016) (per curiam) (unpublished) (“In sum, although Dr. Stein
was not a treating physician, the ALJ did not express a legitimate reason supported
by the record for giving his assessment little weight. See Winschel, 631 F.3d at
1179.”).
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s decision denying Jones’s application for SSI filed February 27,
2014, 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 Jones 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 Jones be awarded
Social Security benefits on the subject application following this remand, the Court
hereby grants Jones’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.13 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
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 11th day of October 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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
1278 n.2.”).
13