Wilson v. Berryhill

Filing 27

MEMORANDUM AND OPINION, the Commisioner's final decision denying plaintiff's 2/10/15 application for a period of disability and DIB is REVERSED and REMANDED under sentence four of 42:405(g) for further proceedings. Signed by Magistrate Judge Katherine P. Nelson on 1/30/19. (srr)

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

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CIVIL ACTION NO. 1:17-00531-N

MEMORANDUM OPINION AND ORDER
Plaintiff Donna Marie Wilson 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. 10, 13) and those
portions of the administrative record (Doc. 9) (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 REVERSED and
REMANDED to the Commissioner under sentence four of § 405(g) 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. 17, 19). With the Court’s consent, the parties
jointly waived the opportunity for oral argument. (See Docs. 16, 18).
After primary briefing was closed, Wilson filed a separate motion to remand
this action to the Commissioner on the basis that the Administrative Law Judge who
issued the unfavorable decision on her application was not constitutionally appointed.
1

I.

Background

On February 10, 2015, Wilson filed an application for a period of disability and
DIB with the Social Security Administration (“SSA”), alleging disability beginning
February 1, 2015.2 After her application was initially denied, Wilson requested a
hearing before an Administrative Law Judge (“ALJ”) with the SSA’s Office of
Disability Adjudication and Review. The hearing was held on October 24, 2016. On
January 13, 2017, the ALJ issued an unfavorable decision on Wilson’s application,
finding her not disabled under the Social Security Act and thus not entitled to
benefits. (See R. 21 – 31).
The Commissioner’s decision on Wilson’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 October 3, 2017. (R. 1 – 6). Wilson
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

(Doc. 20). That motion has been denied by separate order (Doc. 26).
“Title II of the Social Security Act (Act), 49 Stat. 620, as amended, provides for the
payment of insurance benefits to persons who have contributed to the program and
who suffer from a physical or mental disability.” Bowen v. Yuckert, 482 U.S. 137, 140
(1987) (citing 42 U.S.C. § 423(a)(1)(D) (1982 ed., Supp. III)). “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

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).
Moreover, the Eleventh Circuit Court of Appeals, whose review of Social
Security appeals “is the same as that of the district court[,]” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam), generally deems waived claims of error not
fairly raised in the district court. 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
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).
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 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.

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).

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”)
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

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 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

The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
5

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 Wilson met the applicable insured
status requirements through December 31, 2020, and that she had not engaged in
substantial gainful activity since the alleged disability onset date, February 1, 2015.
(R. 26). At Step Two, the ALJ determined that Wilson had the following severe
impairments: degenerative disc disease, osteopenia, and obesity. (R. 26 – 27). At
Step Three, the ALJ found that Wilson did not have an impairment or combination
of impairments that met or equaled the severity of one of the specified impairments
in the Listing of Impairments. (R. 27 – 28).
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 Wilson had the RFC “to perform sedentary work as
defined in 20 CFR 404.1567(a)[6] except that she can never climb ladders, ropes or
scaffolds[, and] can occasionally stoop, crouch, kneel, and crawl. ” (R. 28 – 30). Based
on this RFC and the testimony of a vocational expert, the ALJ determined that Wilson
was capable of performing past relevant work as an administrative assistant. (R. 30
– 31). Thus, the ALJ did not proceed to Step Five and found that Wilson was not
disabled under the Social Security Act. (R. 31).
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).

“‘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:

“To determine the physical exertion requirements of different types of employment
in the national economy, the Commissioner classifies jobs as sedentary, light,
medium, heavy, and very heavy. These terms are all defined in the regulations …
Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4. See
also 20 C.F.R. § 404.1567.
6

(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)). “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 (citation omitted). 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).

“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.” Id. (quoting Phillips, 357 F.3d
at 1240-41) (internal citation omitted). 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…Further, the [Commissioner] may reject the opinion
of any physician when the evidence supports a contrary conclusion.”).7
The ALJ addressed the medical opinion of Wilson’s treating physician, Dr.
James Crumb, as follows:
[T]he undersigned gives some weight to the assessment of treating
physician, James Crumb, M.D., that the claimant is limited to sedentary
except can only sit for a total of 4 hours. This assessment is largely
accepted other than the sitting limitation and the restriction that she
can sit or stand for an hour at a time.[ 8] The undersigned gives little
weight to this portion of the assessment because there is no objective
evidence [sic] support these limitations. The claimant’s physical
examinations have routinely been normal aside from limited range of
Recently, the SSA substantially revised the regulations governing how it considers
medical opinions. However, those revisions apply only to claims filed on or after
March 27, 2017, and are therefore inapplicable to Wilson’s subject application. See
20 C.F.R. § 404.1520c.
7

“Although a sedentary job is defined as one that involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary
criteria are met. ‘Occasionally’ means occurring from very little up to one- third of the
time, and would generally total no more than about 2 hours of an 8-hour workday.
Sitting would generally total about 6 hours of an 8-hour workday.” Social Security
Ruling 96-9p, 1996 WL 374185, at *3 (S.S.A. July 2, 1996).
8

motion and later some numbness. (Ex. 12F/6, 11, 24-26). Dr. Crumb
also opined that pain is frequently present to such an extent as to be
distracting to the adequate performance of work activities and
medications can cause side effects, which imposes some limitations upon
the claimant but not to such a degree as to create serious problems in
most instances. (Ex. 9F/1). These limitations are given little weight
because they are not supported by objective evidence; Dr. Crumb
observed that the claimant did not exhibit pain behavior. (Ex. 15F/17).
(R. 30).
The undersigned agrees with Wilson that the ALJ’s stated reasons for rejecting
the more limiting portions of Dr. Crumb’s opinion are not supported by substantial
evidence. In rejecting Dr. Crumb’s sitting-and-standing opinion, the ALJ selectively
cited to certain exam notes in administrative exhibit 12F purporting to show
“routinely…normal” examinations. (R. 527, 532, 545 – 547). However, Exhibit 12F
is replete with Wilson’s subjective complaints of pain and other symptoms caused by
standing and walking, and nothing in the notes to which the ALJ cites, or indeed in
any of the 26 pages of notes found in Exhibit 12F, is inconsistent with or obviously
detracts from either Wilson’s subjective complaints or Dr. Crumb’s opinion. On the
whole, Exhibit 12F, the only specific evidence to which the ALJ cites to discredit Dr.
Crumb’s sitting-and-standing opinion, does not substantially justify that decision.9

The Commissioner’s brief makes little effort to substantively justify the ALJ’s
reasoning on this point, instead simply parroting the ALJ’s justification and then
inviting Court to speculate that Dr. Crumb’s sitting-and-standing opinion was “likely
influenced” by his pain opinion, which the ALJ also rejected. (See Doc. 13 at 8). First,
the Court cannot engage in such post hoc rationalization to justify an ALJ’s decision
to reject a medical opinion. See Wright, 2016 WL 796098, at *6 n.7 (“The
Commissioner's brief provides a more in-depth discussion of Exhibits B10F and B16F,
citing numerous sections of those records purporting to support the ALJ's decision,
and also cites other record evidence that is contrary to Dr. Pita’s opinion. However,
9

In rejecting Dr. Crumb’s pain opinion, the ALJ cites a single page of Dr.
Crumb’s treatment note from an August 11, 2016 examination (R. 601) purportedly
stating that Wilson “did not exhibit pain behavior.” Wilson claims that the ALJ
misquotes Dr. Crumb’s note and that it should read that Wilson “does not
demonstrate aberrant pain behavior.” (Doc. 10 at 12 (emphasis)). 10 While the
majority of Dr. Crumb’s handwritten notes on this particular page are difficult to
decipher, it is reasonably apparent that Dr. Crumb stated that Wilson “does not

the Court cannot affirm based on such post hoc reasoning.” (citing cases)); Mills v.
Astrue, 226 F. App'x 926, 931–32 (11th Cir. 2007) (per curiam) (unpublished) (“While
there is evidence in the record, such as Dr. Lovett's and Dr. Amiel's opinions, that
supports the ALJ's final decision, the ALJ did not mention nor explain the weight
given to either of these opinions. We cannot say the error was harmless without reweighing the evidence. To do so would call for conjecture that invades the province of
the ALJ. See Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir.2005) (per curiam)
(remanding where the ALJ failed to consider certain factors and indicate their impact
on his ultimate functional capacity conclusion); Wilson v. Comm'r of Soc. Sec., 378
F.3d 541, 546 (6th Cir. 2004) (‘A court cannot excuse the denial of a mandatory
procedural protection simply because, ... there is sufficient evidence in the record for
the ALJ to discount the treating source’s opinion and, thus, a different outcome on
remand is unlikely.’).”); Tavarez v. Comm'r of Soc. Sec., 638 F. App'x 841, 849 (11th
Cir. 2016) (per curiam) (unpublished) (“Overall, we conclude that the ALJ’s clearly
articulated grounds for his decision to discredit Tavarez’s medical opinion evidence
are not supported by substantial evidence. See Winschel, 631 F.3d at 1179. To the
extent that the Commissioner identifies other record evidence that supports the ALJ’s
decision, we do not know whether this evidence formed the basis of the ALJ’s
determinations, and we will not affirm ‘simply because some rationale might have
supported the ALJ’s conclusions.’ See id. at 1179.”). But see McGriff v. Comm'r, Soc.
Sec. Admin., 654 F. App'x 469, 473 (11th Cir. 2016) (per curiam) (unpublished).
Second, even assuming the Commissioner is correct that the ALJ’s rejection of
Dr. Crumb’s pain opinion “likely influenced” his decision to also reject the sit-andstanding opinion, such influence was improper because the ALJ erred in rejecting Dr.
Crumb’s pain opinion, as will be explained.
The Commissioner acknowledges that Wilson’s “reading [of that note] is likely
correct” and therefore “does not rely on this citation” in defending her decision here.
(Doc. 13 at 8 n.10).
10

demonstrate ab---- pain behavior” (R. 601), with some modifier that does not rule out
the possibility of any pain behavior, contrary to what the ALJ determined. Moreover,
on the back page of the same exam note, Dr. Crumb indicated that Wilson had
“objective evidence for moderate to severe pain[,]” that she reported “reduced pain
and improved physical function while on narcotic medications[,]” and that it was
“[m]edically necessary to treat patient’s pain with prescribed narcotic medications.”
(R. 602). This, too, contradicts the ALJ’s conclusion that Dr. Crumb found no pain
behavior in Wilson.
In sum, then, the relatively few pages of the record to which the ALJ
specifically cited to discredit portions of Dr. Crumb’s opinion do not substantially
support that decision, and the ALJ’s otherwise conclusory statements that the
rejected portions of Dr. Crumb’s opinions “are not supported by objective evidence”
are insufficient, on their own, to satisfy an ALJ’s burden to “clearly articulate” “good
cause” to reject a treating physician’s opinion.11 Accordingly, the undersigned cannot

See Perez v. Comm'r of Soc. Sec., 625 F. App’x 408, 417-18 (11th Cir. 2015) (per
curiam) (unpublished) (“[T]he ALJ stated Dr. Hasbun’s opinion about Perez’s
limitations contradicted Dr. Hasbun’s own contemporaneous treatment notes;
however, this statement was conclusory, because the ALJ did not identify any
contradictions. The ALJ listed several medical findings after making this statement,
but those findings all came from consulting the report of the examining physician,
Dr. Meruelo. To the extent the ALJ relied upon a purported contradiction between
Dr. Hasbun’s treatment notes and assessment of Perez's abilities, the explanation is
insufficient. See Phillips, 357 F.3d at 1241.”); Kahle v. Comm'r of Soc. Sec., 845 F.
Supp. 2d 1262, 1272 (M.D. Fla. 2012) (“[C]onclusory statements by an ALJ to the
effect that an opinion is inconsistent with or not bolstered by the medical record are
insufficient to show an ALJ’s decision is supported by substantial evidence unless the
ALJ articulates factual support for such a conclusion.”); Wright v. Colvin, Civil Action
No. 14-00465-N, 2016 WL 796098, at *6 (S.D. Ala. Feb. 26, 2016) (“The ALJ assigned
‘no substantial weight’ to the opinion because it was ‘inconsistent with the
11

conclude that the ALJ’s decision to reject Dr. Crumb’s sitting-and-standing and pain
opinions is rational and supported by substantial evidence. Those opinions, if given
“substantial” or “considerable” weight, would also have significantly bolstered
Wilson’s subjective testimony regarding the limitations caused by her pain and other
impairments, which the ALJ found to be not entirely supported by the record.12
Accordingly, the Court finds that the Commissioner’s final decision denying
Wilson a period of disability and DIB is due to be REVERSED and REMANDED to
the Commissioner under sentence four of § 405(g) for further administrative
proceedings consistent with this decision.
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision denying Wilson’s February 10, 2015 application for a
period of disability and DIB 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

examination notes and reports in Exhibits B10F [R. 339–392] and B16F [R. 455–473].’
Wright asserts that this statement does not meet the requirement that the ALJ ‘state
with particularity the weight given to [Dr. Pita's] medical opinion[ ] and the
reasons therefor.’ Winschel, 631 F.3d at 1179 (emphasis added). The Court agrees
that, standing alone, this summary citation to two exhibits, collectively consisting of
over seventy pages of medical records, is insufficient, as the Court is unable to
determine what inconsistencies the ALJ relied on to justify assigning less than
substantial weight to the opinion.”); Milne v. Colvin, Civil Action No. 15-00656-N,
2016 WL 6516821, at *7 & n.9 (S.D. Ala. Nov. 2, 2016) (similar); Peterson v. Berryhill,
No. 3:17-CV-247-GMB, 2018 WL 2325408, at *7-8 (M.D. Ala. May 22, 2018) (similar).
Wilson has also argued that the RFC fails to adequately account for certain
portions of Dr. Crumb’s opinion that the ALJ did accept. However, the Court finds it
unnecessary to address these additional claims of error, in light of the reversible
errors already identified herein.
12

proceedings consistent with this decision. This remand under sentence four of §
405(g) makes Wilson 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 Wilson be awarded
Social Security benefits on the subject application following this remand, the Court
hereby grants Wilson’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 latestdated notice.
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 30th day of January 2019.
/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