Agnew v. Astrue
MEMORANDUM OPINION AND ORDER entered. 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. Sec. 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 12/1/2011. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
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. 18 & 19 (“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
should be reversed and remanded for further proceedings not inconsistent with this
Plaintiff alleges disability due to neck, shoulder and back injuries resulting from
an April 23, 2007 motor vehicle accident. The Administrative Law Judge (ALJ) made the
following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2012.
The claimant has not engaged in substantial gainful activity since
April 23, 2007, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairment: pain in left
shoulder (20 CFR 404.1520(c) and 416.920(c)).
Medical evidence indicates that the claimant’s left shoulder pain was
evaluated in April 2007. MRI scan results were remarkable for tendinosis
and bursitis. No rotator cuff tear was indicated. He then underwent
surgical decompression of the shoulder in November 2007. L. Scott Atkins,
Jr., M.D., the claimant’s orthopedic surgeon, reported that following
surgery, the claimant was in “good condition.” The doctor also reported
that the claimant has no other problems (Exhibits 1F, 2F, 4F).
On follow up with Dr. Atkins, the doctor reported that the claimant could
return to work in December 2007 with restriction to light work activity (no
lifting greater than 20 pounds) (Exhibit 5F). This is supported by physical
therapy records which show him to have no more than “a little bit of
pain” in the shoulder (Exhibit 9F).
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 18 & 19 (“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
Additional records obtained from Dr. Atkins reveal the claimant to be
neurologically intact. His left arm is neurovascularly intact. He has full
motion and has satisfactory rotator cuff strength (Exhibit 10F).
Records obtained from the Veterans Administration Medical Center,
dated through January 2010, indicate that the claimant complained of back
pain. MRI scans revealed “mild” degenerative changes. These records are
inconsistent with an undated form completed by a VA doctor who
reported that the claimant cannot work more than 6 hours per day and is,
in effect, disabled to work due to pain (Exhibits 12F, 13F, 14F). I see no
statement or explanation for the 6 hour limitation, or the pain, therefore
that opinion is rightly rejected. The doctor also noted nonexertional
limitations as contained in the below residual functional capacity, which
are reasonable and accepted.
I find 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 nonexertional limitations: occasionally push/pull;
frequently climb stairs, ladders and balance; occasionally perform gross
manipulation; frequent[ly] perform fine manipulation; rarely bend;
occasionally reach, operate motor vehicles, and work around hazardous
machinery; and would be absent from work less than once per month.
In making this finding, I have 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. I have 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.
I find that there is no serious degenerative disk disease, stenosis or nerve
impingement. I find no treatment records supporting any chronic medical
condition. There’s no treating source [who] documents impairments of
twelve months duration at a disabling level. The impairment listed above
as severe is not disabling. The record reflects good response to medical
treatment and physical therapy.
There is no medical evidence to corroborate the claimant’s testimony of
limitations caused by pain. His treating physician and orthopedic
surgeon, Dr. Adkins, released him to return to light work activity in
December, 2007. He has been treated conservatively since that time, and
there is no evidence that his physical condition has deteriorated to a
disabling condition since he was last medically cleared for work. To the
contrary, and by his own admission, the claimant handles his personal
needs unassisted, cooks and prepares meals, does household chores,
pushes his lawn mower two hours at a time, shops (including
loading/unloading groceries), drives, and takes Advil for any pain he
experiences (Exhibit 2E). That he suffers from no more than “a little bit of
pain” in the shoulder, combined with no other significant problems,
supports the finding that the above residual functional capacity is
reasonable and based upon the relevant evidence.
Pursuant to Social Security Ruling 96-6p, I have also considered the
opinions of the State Agency medical consultant who concluded that the
claimant is not disabled because of his impairment (Exhibits 1A, 2A, 5E,
6F). Those opinions were reasonably supported by the evidence available
at that time, and supportive of the decision being rendered herein.
I find that the claimant is capable of performing past relevant
work as a Police Officer II. This work does not require the performance
of work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565 and 416.965).
At the hearing, I asked the vocational expert, Mr. Robert Griffin, to
identify work performed by the claimant in the past fifteen years,
indicating the title of the job, the skill and exertional of each job, and the
Dictionary of Occupational Titles (DOT) number (#) of each job. Dr. (sic)
Griffin testified that the claimant’s past relevant work consists of the
following: Police Officer II (skilled-SVP 5, light, DOT # 375.367-010) . . . .
I asked Mr. Griffin whether the above-described residual functional
capacity would preclude the performance of any of the identified jobs. Mr.
Griffin testified that the residual functional capacity would not preclude
the performance of work as a Police Officer II. I accept his testimony and
Upon consideration of the entire record, including the persuasive
testimony of Dr. Griffin, I find that the claimant retains the residual
functional capacity to perform past relevant work as a Police Officer II.
Thus, I find that he has not been disabled since the alleged onset date,
April 23, 2007.
I find that the claimant has not been under a disability, as
defined in the Social Security Act, from April 23, 2007 through the date
of this decision (20 CFR 404.1520(f) and 416.920(f)).
(Tr. 17, 18-19, & 19 (footnote omitted).)
The Appeals Council affirmed the ALJ’s
decision (Tr. 1-4) and thus, the hearing decision became the final decision of the
Commissioner of Social Security.
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
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
Id. at 1005. Once the claimant meets this burden, 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 his past relevant
work as a Police Officer II, 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
In this case, the plaintiff contends that the ALJ made the following errors: (1) he
erred in failing to consider all the evidence in the record, particularly the records
concerning the cervical fusion, cervical radiculopathy, lumbosacral radiculopathy, and
peripheral neuropathy; and (2) he erred in disregarding the medical opinion of the
treating physician and substituting his own opinion for that of the treating source.
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 other
assignment 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.”).
Although the claimant bears the burden of demonstrating the inability to return
to his past relevant work, the Commissioner of Social Security has an obligation to
develop a full and fair record. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). To this end, an ALJ must 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
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).
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
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[,]”
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.”3 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; footnote added). In addition, remand is appropriate
“when an ALJ fails to consider properly a claimant’s condition despite evidence in the
Therefore, the Court finds unpersuasive the Commissioner’s attempts to have the
undersigned supply the rationale for the ALJ’s decision (see Doc. 15, at 9-11 (Commissioner’s
argument that the Court should reject the plaintiff’s argument on the basis that he has not
shown how the evidence the ALJ did not consider would show functional limitations as
required to establish disability)). See also Lawton, supra, 431 Fed.Appx. at 834 (“[W]hen 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.”).
record of the diagnosis.” Vega v. Commissioner of Social Security, 265 F.3d 1214, 1219 (11th
Cir. 2001) (citation omitted).
In this case, the ALJ makes no mention whatsoever of the medical evidence of
record relating to plaintiff’s cervical fusion at C6-7, following an April 23, 2007 motor
vehicle accident, and follow-up treatment (compare Tr. 17-19 with Tr. 295-296, 325-350,
379-391, 485-492 & 502-534), or, for that matter, evidence relating to diagnosed cervical
radiculopathy, lumbosacral radiculopathy, and peripheral neuropathy (compare Tr. 1719 with Tr. 358-378, 396, 404-406, 426-433, 438-441, 457-473 & 493). And while, as noted
by the defendant (Doc. 15, at 9), 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 rejection of
every piece of evidence in the record, of which there was plenty, regarding plaintiff’s
cervical fusion and follow-up treatment, as well as the cervical radiculopathy,
lumbosacral radiculopathy, and peripheral neuropathy evidence.4 As a result, not only
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
is this Court unable to conclude that the ALJ considered Agnew’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.
The ALJ’s error in this case is particularly troubling given his implicit recognition
during the administrative hearing that plaintiff’s cervical fusion constitutes a severe
impairment, as reflected by his specific questioning of Agnew about this impairment
(Tr. 29-31; see also Tr. 36-37) and his on-the-record comment about an off-the-record
discussion with counsel regarding a possible finding of a closed period of disability (see
Tr. 44 (commenting about plaintiff’s shoulder problems beginning in the latter part of
2007 and then noting that “because the claimant was involved in an accident which
required a fusion at I believe  C6-C7, I asked counsel whether he would consider a
closed period before I started questioning our vocation expert and . . . his answer was a
definitive no.”)). In other words, the ALJ’s implicit recognition during the hearing that
plaintiff’s cervical fusion constitutes a severe impairment, which is supported by the
evidence of record (see, e.g., Tr. 487 (“I consider him to be a[t] MMI for his neck and will
assign him a 15% permanent partial impairment rating for his whole body.”)), stands in
stark contrast and cannot be reconciled with his failure to make a finding in his decision
the case in Dyer) and failing to discuss probative evidence of [at least] one of Plaintiff’s
diagnoses (as is the case here).”
that this impairment is a severe impairment or his failure to discuss any evidence of
record regarding this impairment.5
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.
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 1st day of December, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
After all, an impairment is not severe only if it “does not significantly limit [the
claimant’s] physical . . . ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a) & 416.921(a).
This Court is unable to discern how anyone could ever credibly determine that an impairment
which translates into a 15% permanent partial impairment rating for the body as a whole is not
a severe impairment. See McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (“Step two is a
threshold inquiry. It allows only claims based on the most trivial impairments to be rejected.”).
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