Hasty v. Astrue

Filing 30

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. Sec. 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 12/14/2011. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

JOHN PHILIP HASTY,

:

Plaintiff,

:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

CA 10-0616-C

:
:

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying his
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 21 & 22 (“In accordance with
provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States magistrate judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of the parties at the November 17, 2011 hearing before the
Court, it is determined that the Commissioner’s decision denying plaintiff benefits

1

should be reversed and remanded for further proceedings not inconsistent with this
decision.1
Plaintiff alleges disability due to post-traumatic arthritis of the left knee, posttibial plateau fracture, arthritis of the hip, arthritis of the back, borderline intellectual
functioning, and obesity. The Administrative Law Judge (ALJ) made the following
relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2010.
2.
The claimant has not engaged in substantial gainful activity since
June 30, 2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971
et seq.).
3.
The claimant has the following severe impairments: post
traumatic arthritis of the left knee post tibial plateau fracture; arthritis
of the hip; and borderline intellectual functioning (20 CFR 404.1520(c)
and 416.920(c)).
In addition to the severe impairments listed above, the undersigned notes
that the claimant also underwent a successful hernia repair (Exhibit 11F).
At the hearing, the claimant did not mention one residual symptom or
limiting effect related to this hernia repair. Because the claimant has no
residual symptoms or limitations related to this operation, the claimant’s
hernia repair does not even minimally impact his ability to perform workrelated activities and, therefore, this hernia repair does not meet the
definition of a severe impairment.
.

.

.

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 21 & 22 (“An appeal from a
judgment entered by a magistrate judge shall be taken directly to the United States court of
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
district court.”))
1

2

5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the
following additional limitations: the claimant can lift or carry no more
than 20 pounds occasionally and 10 pounds frequently; the claimant can
sit for up to eight hours in an eight-hour day; the claimant can walk or
stand for up to two hours in an eight-hour day; the claimant can rarely
push or pull with the left lower extremity, but can frequently push or
pull with the right lower extremity; the claimant cannot climb ladders,
ropes, or scaffolds; the claimant can occasionally bend or stoop; the
claimant cannot crouch, crawl or kneel; the claimant can occasionally
climb stairs; the claimant can understand, remember and carry out
simple, routine, and repetitive tasks; and the claimant could be expected
to have one unscheduled absence from the worksite per month.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and
96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—
i.e., an impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques—that could reasonably be expected
to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning. For this purpose, whenever
statements about the intensity, persistence, or functionally limiting
effects of pain or other symptoms are not substantiated by objective
medical evidence, the undersigned must make a finding on the credibility
of the statements based on a consideration of the entire case record.
At the hearing the claimant devoted most of his testimony to the pain in
his left knee. This pain first arose, the claimant says, when he injured his
left knee in 2004. The claimant alleges that this extreme knee pain
combines with his serious hip and back pain to limit his physical
3

functional capacity. This pain, the claimant says, is worse during rainy
weather. Because of this knee and hip pain, the claimant says he cannot
lift more than 80 to 100 pounds occasionally and 20 to 30 pounds
frequently; cannot walk for half a block; cannot stand for more than 10 to
15 minutes at a time; and cannot sit for more than 10-15 minutes at a time.
The claimant also says that he cannot crawl at all or bend at the waist. The
claimant testified that he has no problems with his hands or arms.
The claimant also testified that his physical functioning is limited not
only by his pain, but also his obesity. The claimant is 5’10” and estimates
he weighs 345 pounds.
Regarding his activities of daily living, the claimant says that he can do “a
little work around the house”; take a shower and dress on his own; and
drive a car to the grocery store. The claimant says he is able to grocery
shop for about 30 minutes. After 30 minutes, the claimant says the pain
becomes too intense.
After consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.
The undersigned finds that the claimant’s physical severe impairment[]s
certainly preclude him from returning to his past relevant work because
all of his past work requires performing at a medium to heavy exertional
level according to the testimony of the impartial vocational expert that
will be discussed below. However, the medical evidence and the evidence
pertaining to the claimant’s activities of daily living do not support the
claimant’s contention that he cannot perform light or sedentary work.
In terms of all of the claimant’s alleged physical symptoms and
limitations, the claimant’s activities of daily living indicate that he still
retains the residual functional capacity to perform light or sedentary
work. For example, the claimant testified at the hearing that he can lift 80100 pounds occasionally and 20-30 pounds frequently. This lifting ability
is more than adequate for light or sedentary jobs. Similarly, the claimant
testified that he does some work around the house; can shower and dress
without assistance; can drive a car; and can spend about 30 minutes
walking through a grocery store picking up items. These daily activities
are inconsistent with the claimant’s principal allegation that his physical
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severe impairments preclude him from performing any work-related
activities.
Even more strikingly inconsistent than his daily activities are the work
activities that the claimant performs around the farm. According to the
treatment records of chiropractor Dr. Jerry Schreiner, as recently as June
22, 2009, the claimant was riding a tractor around the farm (Exhibit 20F).
On January 15, 2009, Dr. Schreiner’s treatment records show that the
claimant was still “farming for a living.” Similarly, on March 26, 2008, the
treatment records state that the claimant was recently doing “a lot of
tractor riding.” The undersigned cannot reconcile the claimant’s allegation
that he is too limited by his severe physical impairments to work even a
light or sedentary job, and the abundant documentary evidence of the
work he performs on his farm. These farm activities are inconsistent with
the claimant’s allegations of back, knee, and hip pain. This inconsistency
undermines the credibility of the claimant’s allegations.
Not only are the claimant’s daily activities and farm activities inconsistent
with his allegations, the objective medical evidence is also inconsistent
with his allegations. For example, regarding the claimant’s left knee pain
which he alleges is his most limiting symptom, the medical records of
Grove Hill Memorial Hospital are inconsistent with the claimant’s
allegations (Exhibit 4F). According to these records, the surgery
performed on the claimant’s knee was successful and by December 13,
2005, the claimant’s fracture had healed and his tibial plateau was in good
position. In follow-up visits is was determined that the claimant did
experience some residual pain, but these symptoms were controllable
using steroid injections (Exhibit 12F). On August 7, 2007, the claimant’s
treating physician opined that the claimant could not return to heavy
labor, but could perform his day-to-day functions. This opinion is
consistent with the undersigned’s finding that the claimant’s symptoms
preclude him from returning to the heavy and medium exertional level
work the claimant performed in the past, but his symptoms do not
preclude him from performing light or sedentary work.
The undersigned also notes an X-ray of the claimant’s lumbar spine that
contradicts the claimant’s allegations regarding lower back pain (Exhibit
6F). This X-Ray from August 9, 2005, interpreted by Dr. Himath Singh[,]
showed no evidence of fracture, and showed preserved disc spaces in the
claimant’s lumbar spine. In short, the X-ray revealed no significant
abnormalities that would support the claimant’s allegation of intense back
pain.

5

The undersigned finds that the most notable inconsistency is between the
opinion of the claimant’s treating physician, Dr. John Mitchell, and the
claimant’s allegation that his symptoms preclude him from performing all
work related activities (Exhibit 21F). In stark contrast to the claimant’s
allegation that he can only sit, stand or walk for 10 to 15 minutes at a time,
Dr. Mitchell opined that the claimant can sit for eight hours in an eighthour day; and stand or walk for four hours in an eight-hour day. This
inconsistency between the opinion of Dr. Mitchell and the claimant’s
hearing testimony undermines the credibility of the claimant’s allegations.
.

.

.

As for the opinion evidence, the undersigned assigns controlling weight to
the opinion of treating physician Dr. John Mitchell (Exhibit 21F).
According to Dr. Mitchell, the claimant can sit for up to eight hours in an
eight-hour day; can stand or walk for four hours in an eight-hour day; can
lift or carry 20 pounds occasionally and 10 pounds frequently; can push
and pull rarely with the left knee but frequently with the right knee;
cannot climb stairs or ladders; can bend or stoop occasionally; and can
reach, gross manipulate, operate motor vehicles, and work around
hazardous machinery frequently. Dr. Mitchell also opined that the
claimant’s impairments would cause one unplanned absence from work
per month. The established residual functional capacity fully incorporates
the opinion of Dr. Mitchell.
The undersigned gives significant weight to the opinion of Dr. Sandra
Knox contained in the physical residual functional capacity assessment
she completed (Exhibit 17F). According to Dr. Knox the claimant can lift
or carry 20 pounds occasionally and 10 pounds frequently; can sit for six
hours in an eight-hour day; can stand or walk for two hours in an eighthour day; can climb ramps or stairs occasionally; can balance and stoop
frequently; can kneel, crouch, and crawl occasionally; cannot climb
ladders, ropes, or scaffolds; and must avoid concentrated exposure to
unprotected heights and hazardous machinery. The established residual
functional capacity incorporates nearly all the limitations noted in the
opinion of Dr. Knox. The undersigned rejects Dr. Knox’s opinion
regarding workplace hazards because the treatment records clearly show
that the claimant has the capacity to operate hazardous machinery such as
his farm tractor (Exhibit 22F).
.

.

.

6

In sum, the above residual functional capacity assessment is supported by
the claimant’s testimony regarding his activities of daily living; the
claimant’s work activities around the farm; and the medical opinions of
Doctors Mitchell, Knox, Blanton, and Simpson.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
.

.

.

7.
The claimant was born on March 20, 1961 and was 43 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
In determining whether a successful adjustment to other work can be
made, the undersigned must consider the claimant’s residual functional
capacity, age, education, and work experience in conjunction with the
Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If
the claimant can perform all or substantially all of the exertional demands
at a given level of exertion, the medical-vocational rules direct a
conclusion of either “disabled” or “not disabled” depending upon the
claimant’s specific vocational profile (SSR 83-11). When the claimant
cannot perform substantially all of the exertional demands of work at a
given level of exertion and/or has nonexertional limitations, the medicalvocational rules are used as a framework for decisionmaking unless there
is a rule that directs a conclusion of “disabled” without considering the
additional exertional and/or nonexertional limitations (SSRs 83-12 and 8314). If the claimant has solely nonexertional limitations, section 204.00 in
the Medical-Vocational Guidelines provides a framework for
decisionmaking (SSR 85-15).
7

If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.21. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled light occupational base, the
Administrative Law Judge asked the vocational expert whether jobs exist
in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity. The
vocational expert testified that given all of these factors the individual
would be able to perform the requirements of representative sedentary,
unskilled occupations such as an addresser (DOT 209.587-010, 7,000 jobs
in the United States, 100 jobs in Alabama), a food and beverage order clerk
(DOT 209.567-0142, 3,000 jobs in the United States, 250 jobs in Alabama),
and a charge account clerk (DOT 205.367-014, 38,000 jobs in the United
States, 570 jobs in Alabama).
Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of the above-cited rule.
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from June 30, 2007, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
(Tr. 710-711, 712-714, 715, 716, & 716-717 (some emphasis added).)

The Appeals

Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the hearing decision became the
final decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that he is
unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In
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evaluating whether the claimant has met this burden, the examiner must consider the
following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; and (4) the claimant’s age, education and
work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the
Commissioner’s burden to prove that the claimant is capable, given his age, education
and work history, of engaging in another kind of substantial gainful employment which
exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that he can perform those unskilled
sedentary jobs identified by the vocational expert during the hearing, is supported by
substantial evidence. Substantial evidence is defined as more than a scintilla and means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In
determining whether substantial evidence exists, we must view the record as a whole,
taking into account evidence favorable as well as unfavorable to the Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).2
In this case, the plaintiff contends that the ALJ made the following errors: (1) she
erred in ignoring the pain assessment of Dr. John Mitchell; (2) she erred in ignoring the
assessments of Jerry Schreiner, DC, plaintiff’s long-time treating chiropractor; (3) she

This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
2

9

erred in failing to identify obesity as a severe impairment; and (4) the ALJ conducted a
flawed credibility evaluation. Because the undersigned agrees with the plaintiff that the
ALJ erred in failing to consider all the evidence of record, the Court need not consider
plaintiff’s third and fourth assignments of error. See Pendley v. Heckler, 767 F.2d 1561,
1563 (11th Cir. 1985) (“Because the ‘misuse of the expert’s testimony alone warrants a
reversal,’ we do not consider the appellant’s other claims.”).
It is clear in this circuit that the Commissioner of Social Security must develop “a
full and fair record regarding the vocational opportunities available to a claimant.”
Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989) (citation omitted). The
Commissioner must articulate specific jobs that the claimant can perform given her age,
education and work history, if any, “and this finding must be supported by substantial
evidence, not mere intuition or conjecture.” See id. (citation omitted). Stated differently,
the burden is on the Commissioner at the fifth step of the sequential evaluation process
to establish capacity to perform other work and thereby to establish the claimant’s
residual functional capacity. See Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The ALJ in this case certainly recognized that in reaching her decision on
residual functional capacity, it was incumbent upon her not only to consider the
plaintiff’s allegations of pain and other symptoms but, as well, the opinion evidence of
record. (Compare Tr. 712 (“In making this [residual functional capacity] finding, the
undersigned has considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other
evidence[.]”) and Tr. 713 (“[O]nce an underlying physical or mental impairment(s) that
10

could reasonably be expected to produce the claimant’s pain or other symptoms has
been shown, the undersigned must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they limit the
claimant’s functioning. For this purpose, whenever statements about the intensity,
persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must make a finding on
the credibility of the statements based on a consideration of the entire case record.”)
with Tr. 715 (“As for the opinion evidence, the undersigned assigns controlling weight
to the opinion of treating physician Dr. John Mitchell[.] . . . The undersigned gives
significant weight to the opinion of Dr. Sandra Knox contained in the physical residual
functional capacity assessment she completed[.]”) and Tr. 716 (“In sum, the above
residual functional capacity assessment is supported by the claimant’s testimony
regarding his activities of daily living; the claimant’s work activities around the farm;
and the medical opinions of Doctors Mitchell, Knox, Blanton, and Simpson.”).) Thus,
the ALJ certainly recognized her duty (see Tr. 712-716) to state with particularity the
weight accorded “to each item of evidence[,]” Randolph v. Astrue, 291 Fed.Appx. 979, 982
(11th Cir. Sept. 10, 2008); see also Brunson v. Astrue, 2011 WL 839366, *12 (M.D. Fla. Mar.
7, 2011) (“[T]he ALJ ‘should state the weight he accords to each item of impairment
evidence and the reasons for his decision to accept or reject that evidence.’”), including
the different medical opinions, and the reasons for his decision, Lawton v. Commissioner

11

of Social Security, 431 Fed.Appx. 830, 834 (11th Cir. June 22, 2011). Indeed, “[a] statement
that the ALJ carefully considered all the testimony and exhibits is not sufficient[,]”3
because “[w]ithout an explanation of the weight accorded by the ALJ, it is impossible
for a reviewing court to determine whether the ultimate decision on the merits of the
claim is rational and supported by substantial evidence.” Id. (footnote added), citing
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981); see also Winschel v. Commissioner of
Social Security, 631 F.3d 1176, 1179 (11th Cir. 2011) (“‘In the absence of such a statement,
it is impossible for a reviewing court to determine whether the ultimate decision on the
merits of the claim is rational and supported by substantial evidence.’”).
Therefore, when the ALJ fails to “state with at least some measure of
clarity the grounds for his decision,” we will decline to affirm “simply
because some rationale might have supported the ALJ’s conclusion.” In
such a situation, “to say that [the ALJ’s] decision is supported by
substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions
reached are rational.”
Id. (internal citations omitted). In addition, remand is appropriate “when an ALJ fails to
consider properly a claimant’s condition despite evidence in the record of the
diagnosis.” Vega v. Commissioner of Social Security, 265 F.3d 1214, 1219 (11th Cir. 2001)
(citation omitted).

Thus, the ALJ’s various statements that she had considered all of the evidence
(see, e.g., Tr. 712 (“After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work . . . .”)) are not
sufficient.
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12

In this case, the ALJ makes no mention in her decision of Dr. John Mitchell’s pain
assessment (Tr. 688)4 or the physical medical source statement provided by plaintiff’s
treating chiropractor, Jerry L. Schreiner (Tr. 690), along with his many office notes (see,
e.g., Tr. 691-696). And while the Eleventh Circuit, in Dyer v. Barnhart, 395 F.3d 1206, 1211
(2005), determined that “there is no rigid requirement that the ALJ specifically refer to
every piece of evidence in his decision,” the Dyer panel limited its determination to that
situation in which “the ALJ’s decision . . . is not a broad rejection which is ‘not enough
to enable [the district court or this Court] to conclude that [the ALJ] considered
[plaintiff’s] medical condition as a whole.’” Id. at 1211, quoting Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995). Here, the very best comment this Court could make about
the ALJ’s decision is that it constitutes, under Dyer, an improperly broad (albeit

While the Commissioner, in his brief, argues that the ALJ fully addressed Dr.
Mitchell’s pain assessment and gave it controlling weight (Doc. 29, at 8 (“Dr. Mitchell’s pain
assessment was contained within Dr. Mitchell’s four-page opinion at “Exhibit 21F,” which was
specifically discussed and weighed by the ALJ (see Tr. 685-88). In her decision, the ALJ stated
she gave controlling weight to Dr. Mitchell’s opinion at “Exhibit 21F” (Tr. 715). The ALJ then
fully incorporated Dr. Mitchell’s opinion into her residual functional capacity finding (Tr. 715).
Here, the ALJ adequately addressed Dr. Mitchell’s pain assessment and gave it controlling
weight.”)), this Court cannot agree given that the degree of pain assessed by Dr. Mitchell (Tr.
688 (“Pain is present to such an extent as to be distracting to adequate performance of daily
activities. . . . [W]alking . . . [g]reatly increase[s] pain to such a degree as to cause distraction
from task or total abandonment of task. . . . Significant side effects may be expected which may
limit effectiveness of work duties or performance of everyday tasks, e.g., driving.”)) arguably
rises to that level which the vocational expert testified would preclude work (compare id. with Tr.
91 (VE’s testimony that if plaintiff experienced moderately severe to severe pain in his left knee
daily “[t]his would negatively impact [] attention and concentration and, therefore,
productivity, and pain at this level on a daily basis would preclude competitive
employment.”)). Moreover, the ALJ simply said nothing about the findings on the pain
assessment, as she did with the doctor’s findings on the physical medical source statement
(compare Tr. 687 with Tr. 712), thereby casting doubt on the defendant’s argument in this regard.
4

13

implicit) rejection of every piece of evidence in the record favorable to plaintiff.5 Cf.
Cowart, supra, 662 F.2d at 735 (recognizing an ALJ’s duty to be “‘diligent in ensuring
that favorable as well as unfavorable’” evidence is explored). As a result, not only is this
Court unable to conclude that the ALJ considered Hasty’s condition as a whole, Dyer,
supra, but, as well, it is impossible for this Court “‘to determine whether the ultimate
decision on the merits of the claim is rational and supported by substantial evidence.’”
Winschel, supra, 631 F.3d at 1179, quoting Cowart, supra, 662 F.2d at 735. Particularly
troubling in this case is the ALJ’s statement that she accorded “significant weight” to
the RFC assessment of “Dr. Sandra Knox” (Tr. 715), even though Knox is a disability
examiner/specialist (see, e.g., Tr. 218) as opposed to a physician—and, therefore, her
opinion is entitled to no weight—6 yet failed to mention or assign weight to the treating

In other words, as observed in Brunson, supra, at *12, “there is a difference in
failing to discuss a pain medication the plaintiff had been prescribed on one occasion (as was
the case in Dyer) and failing to discuss probative evidence of [at least] one of Plaintiff’s
diagnoses (as is the case here).”
5

Compare Traylor v. Astrue, 2010 WL 920114, *5 (M.D. Ala. Mar. 11, 2010) (“The
referenced opinion, however, is not that of a physician; it is the opinion of the DDS disability
examiner, Karen Wiggins. Her opinion is not, as the Appeals Council apparently believed,
entitled to consideration as an expert medical opinion.” (internal citation omitted)); Foxx v.
Astrue, 2009 WL 2899048, * 7 (S.D. Ala. Sept. 3, 2009) (“While the findings of state agency
medical consultants regarding the nature and severity of an individual’s impairments must be
considered and can be relied upon when they do not conflict with the opinions of examining
sources, there is no evidence before the Court that Carol M. Davis, S.D.M., the person who
completed the RFC assessment is a medical consultant whose opinion qualifies as a medical
source opinion.”); Casey v. Astrue, 2008 WL 2509030, *4 n.3 (S.D. Ala. June 19, 2008) (“[A]n RFC
assessment completed by a disability specialist is entitled to no weight.”); and Bolton v. Astrue,
2008 WL 2038513, *4 (M.D.Fla. May 12, 2008) (“‘An SDM is not a medical professional of any
stripe, and’ a finding from such an individual is ‘entitled to no weight as a medical opinion, nor
to consideration as evidence from other non-medical sources.’”) with 20 C.F.R. § 404.1513(c)
(2011) (“At the administrative law judge and Appeals Council levels, and at the reviewing
official, administrative law judge, and Decision Review Board levels in claims adjudicated
6

(Continued)
14

chiropractor’s physical medical source statement (Tr. 690), even though the
Commissioner’s regulations define a chiropractor as an “other” medical source, see 20
C.F.R. § 404.1513(d)(1) (“In addition to evidence from the acceptable medical sources
listed in paragraph (a) of this section, we may also use evidence from other sources to
show the severity of your impairment(s) and how it affects your ability to work. Other
sources include, but are not limited to—(1) Medical sources not listed in paragraph (a)
of this section (for example, nurse-practitioners, physicians’ assistants, naturopaths,
chiropractors, audiologists, and therapists)[.]”).
To affirm the ALJ’s decision in this case would constitute an abdication of this
Court’s “‘duty to scrutinize the record as a whole to determine whether the conclusions
reached are rational.’” Winschel, supra, 631 F.3d at 1179, quoting Cowart, supra, 662 F.2d
at 735. Accordingly, this cause must be remanded to the Commissioner of Social
Security for further consideration not inconsistent with this decision.7

under the procedures in part 405 of this chapter, we will consider residual functional capacity
assessments made by State agency medical and psychological consultants, medical and
psychological experts . . ., and other program physicians and psychologists to be ‘statements
about what you can still do’ made by non-examining physicians and psychologists based on
their review of the evidence in the case record.”) & (d)(1)-(4) (describing evidence that may be
used from other acceptable medical and non-medical sources but never identifying disability
specialists as an acceptable non-medical source); cf. Swindle v. Sullivan, 914 F.2d 222, 226 n.3
(11th Cir. 1990) (the opinion of a non-examining, reviewing physician “is entitled to little weight
and taken alone does not constitute substantial evidence to support an administrative
decision.”).
On remand, the ALJ should also specifically address whether plaintiff’s obesity is
a severe impairment, particularly in light of Hasty’s testimony regarding the impact of his
obesity, as recounted by the ALJ (Tr. 713 (“The claimant also testified that his physical
functioning is limited not only by his pain, but also his obesity. The claimant is 5’10” and
estimates that he weighs 345 pounds.”)), and the process by which the ALJ determined
7

(Continued)
15

CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. '
405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625,
125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 14th day of December, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

plaintiff’s hernia repair was not a severe impairment (Tr. 710-711 (“In addition to the severe
impairments listed above, the undersigned notes that the claimant also underwent a successful
hernia repair (Exhibit 11F). At the hearing, the claimant did not mention one residual symptom
or limiting effect related to this hernia repair. Because the claimant has no residual symptoms or
limitations related to this operation, the claimant’s hernia repair does not even minimally
impact his ability to perform work-related activities and, therefore, this hernia repair does not
meet the definition of a severe impairment.”)). In addition, the undersigned is curious why the
ALJ did not list plaintiff’s back impairment as a severe impairment given her numerous
comments in the decision about Hasty’s complaints of back pain and the fact that the treatment
afforded by plaintiff’s chiropractor focused a lot on his back.

16