Owens v. Colvin
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. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 12/21/2015. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial
review of a final decision of the Commissioner of Social Security denying her claim for
supplemental security income benefits. 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. 17 & 19 (“In accordance with the 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 counsel at the
December 9, 2015 hearing before the Court, it is determined that the Commissioner’s
decision denying benefits should be reversed and remanded for further proceedings not
inconsistent with this decision.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 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 district court.”))
Plaintiff alleges disability due to a right hand injury with nerve damage and
hypothyroidism, headaches, chronic rhinitis and sinusitis, medication side effects,
fatigue, GERD, and breast cancer. The Administrative Law Judge (ALJ) made the
following relevant findings:
The claimant has not engaged in substantial gainful activity since
January 7, 2013, the amended alleged onset date (20 CFR 416.971 et seq.).
The claimant has the following severe impairments: obesity,
insulin dependent diabetes mellitus, status post breast cancer with
mastectomy, and contracture joint, right hand (2004 injury to hand from
knife cut) (20 CFR 416.920(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) with the following exceptions: no climbing
ladders, ropes or scaffolds; no unprotected heights or hazardous
machinery; and she is limited to no more than occasional repetitive
handling and fingering with the dominant right hand.
At the hearing, [the claimant] testified that since starting chemotherapy,
she has been slow, with slow heartbeat, sluggish, and unable to persist at
tasks for more than 30 minutes at a time. She spends most of her time in
bed, recovering from chemotherapy at this point. She can do a little more
after the four days after chemotherapy. She said her daughter helps her
with things and that she goes to chemotherapy twice a month for three
hours each. She has issues with GERD and surgery has been
recommended when she finishes chemo. She reported a diagnosis of
diabetes and that she takes shots twice a day for this. She has issues using
her hand (writing, balling in a fist, etc.) and she takes Lortab for the pain
every four hours. She is right handed, and cannot open a door with her
hand, allegedly. However, I do note that prior to chemotherapy she was
helping care for her mother, feeding her, brushing her teeth, and cooking
for her. She can shop, do household chores, wash clothes, and help her
mother (prior to chemo).
Although she did exhibit some negative results to the chemotherapy,
including dehydration that required hospitalization, upon release she was
stable on therapy. Her physician requested  barium swallow after she
was released from the hospital, and it revealed esophageal diverticulum
near diaphragm and GERD. Notes from Cancer Center of Demopolis also
reveal that she looked good and was tolerating treatment well. Follow up
from the dehydration admission indicated that she “feels better”.
As for the rest of the opinion evidence, the undersigned gives great
weight to the opinion of Dr. Anderson at the second hearing. Dr.
Anderson testified that the claimant is a 48[-]year[-]old woman with
metabolic syndrome, who is obese (5’2”, 172 pounds), with obesity related
hypertension and diabetes mellitus. She has no complications associated
with that. She has asymptomatic hypothyroidism. She has carcinoma of
the right breast diagnosed in February 2013, and has undergone a
modified mastectomy in March of this year, with follow-up chemotherapy
and radiotherapy as per standard protocol. Her workup reveals no
metastatic disease and has no documented complications of therapy other
than an episode of gastritis associated with chemotherapy in April of
2013.2 She also has the distant diagnosis of laceration of the right hand.
Postural restrictions are not delineated, but there is some suggestion that
she has some incisional pain from a laceration. She declined the physical
examination. The records indicate that she does not meet or equal the
carcinoma listing, as she does not have any documentation of metastatic
recurrent disease process, and she does not have documentation of
complications that would be expected to last 12 months. Taking into
consideration her obesity, he opined that light work activity is supported.
Because of the allegations of pain, he limited her to occasional use only for
the right hand for repetitive fingering and handling. These restrictions are
present from the amended onset through today. He noted also that GERD
and constipation were present, but not severe impairments. He also saw
no pulmonary restrictions in the record. Dr. Anderson also testified that
dehydration, GI complaints, nausea, and vomiting, are all side effects of
The ALJ’s summary of Dr. Anderson’s hearing testimony is incorrect in two
respects, as Dr. Anderson later admitted not only that plaintiff was hospitalized for
dehydration, as well, as a result of her chemotherapy treatments (see Tr. 67) but, as well, that he
did not know whether plaintiff’s radiation therapy would follow standard protocol (see Tr. 68).
chemotherapy, as well as significant weakness. However[,] those
complications are not expected to last 12 months per Dr. Anderson’s
review of the record. Her treatment appears to be according to standard
The claimant is unable to perform any past relevant work (20
The claimant was born on March 13, 1965 and was 47 years old,
which is defined as a younger individual age 18-49, on the amended
alleged onset date (20 CFR 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).
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 C.F.R. Part 404, Subpart P, Appendix 2).
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
416.969, and 416.969(a)).
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, I
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 occupations such as child care attendant [DOT #349.677018], light, unskilled, with 60,000 jobs in the national economy; machine
off bearer [DOT #569.686-046], light, unskilled, with over 100,000 jobs in
the national economy; and bakery worker [DOT #529.687-022], light,
unskilled, with 150,000 jobs in the national economy.
Pursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary of
Based on the testimony of the vocational expert, I conclude 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.
The claimant has not been under a disability, as defined in the
Social Security Act, since January 7, 2013, the amended alleged onset
date (20 CFR 416.920(g)).
(Tr. 39, 39-40, 40-41, 42, 43-44, 44 & 45 (internal citations omitted; emphasis in original).)
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.
A claimant is entitled to an award of supplemental security income benefits
when she is unable to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
last for a continuous period of not less than 12 months. See 20 C.F.R. § 416.905(a) (2015).
In determining whether a claimant has met her burden of proving disability, the
Commissioner follows a five-step sequential evaluation process. See 20 C.F.R. § 416.920.
At step one, if a claimant is performing substantial gainful activity, she is not disabled.
20 C.F.R. § 416.920(b). At the second step, if a claimant does not have an impairment or
combination of impairments that significantly limits her physical or mental ability to do
basic work activities (that is, a severe impairment), she is not disabled. 20 C.F.R. §
416.920(c). At step three, if a claimant proves that her impairments meet or medically
equal one of the listed impairments set forth in Appendix 1 to Subpart P of Part 404, the
claimant will be considered disabled without consideration of age, education and work
experience. 20 C.F.R. § 416.920(d). At the fourth step, if the claimant is unable to prove
the existence of a listed impairment, she must prove that her physical and/or mental
impairments prevent her from performing her past relevant work. 20 C.F.R. § 416.920(f).
And at the fifth step, the Commissioner must consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the claimant
can perform other work besides past relevant work. 20 C.F.R. § 416.920(g). Plaintiff
bears the burden of proof through the first four steps of the sequential evaluation
process, see Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d
119 (1987), and while the burden of proof shifts to the Commissioner at the fifth step of
the process to establish other jobs existing in substantial numbers in the national
economy that the claimant can perform,3 the ultimate burden of proving disability
never shifts from the plaintiff, see, e.g., Green v. Social Security Administration, 223
Fed.Appx. 915, 923 (11th Cir. May 2, 2007) (“If a claimant proves that she is unable to
perform her past relevant work, in the fifth step, ‘the burden shifts to the Commissioner
to determine if there is other work available in significant numbers in the national
economy that the claimant is able to perform.’ . . . Should the Commissioner
‘demonstrate that there are jobs the claimant can perform, the claimant must prove she
is unable to perform those jobs in order to be found disabled.’”).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she is capable of performing those
See, e.g., McManus v. Barnhart, 2004 WL 3316303, *2 (M.D. Fla. Dec. 14, 2004)
(“The burden  temporarily shifts to the Commissioner to demonstrate that ‘other work’ which
the claimant can perform currently exists in the national economy.”).
light jobs identified by the vocational expert, 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).4 Courts are precluded, however,
from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 995, 996 (11th Cir. Apr. 1, 2010)5 (per curiam) (citing Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005)). And, “[e]ven if the evidence preponderates against the
Commissioner’s findings, [a court] must affirm if the decision reached is supported by
substantial evidence.” Id., citing Crawford v. Commissioner of Social Security, 363 F.3d
1155, 1158-1159 (11th Cir. 2004).
On appeal to this Court, Owens asserts numerous reasons why the
Commissioner’s decision to deny her benefits is in error (i.e., not supported by
substantial evidence): (1) the ALJ failed to complete a PRTF and append it to the
decision or incorporate its mode of analysis into her findings; (2) the ALJ’s mental RFC
assessment is not supported by substantial evidence because the ALJ ignored the
impact of plaintiff’s depression, as well as her chronic pain; (3) the ALJ failed to
accurately consider plaintiff’s medication side effects; and (4) the hypothetical posed to
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).
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
the vocational expert was incomplete. Because the Court agrees with plaintiff’s fourth
assignment of error, there is no need to address at any length the other assignments of
error raised by Owens. 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.”).
As indicated above, this is a fifth step case and at the fifth step the Commissioner
must establish that a significant number of jobs exist in the national economy that the
claimant can perform given her RFC, age, education, and work experience. See, e.g.,
Bellew v. Acting Commissioner of Social Security, 605 Fed.Appx. 917, 930 (11th Cir. May 6,
2015) (citation omitted). “An ALJ may make this determination either by applying the
Medical Vocational Guidelines or by obtaining the testimony of a vocational expert.”
Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1180 (11th Cir. 2011), citing
Phillips v. Barnhart, 357 F.3d 1232, 1239-1240 (11th Cir. 2004). Here, of course, in finding
that Owens could perform other work existing in significant numbers in the national
economy (see Tr. 45), “the ALJ relied exclusively on the testimony of a vocational
expert[.]” Dial v. Commissioner of Social Security, 403 Fed.Appx. 420, 421 (11th Cir. Nov.
18, 2010). “’In order for a vocational expert’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the
claimant’s impairments.’” Winschel, supra, 631 F.3d at 1180, quoting Wilson v. Barnhart,
284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam); see also Dial, supra, 403 Fed.Appx. at
421 (where ALJ failed to include all of the claimant’s “employment limitations in the
hypothetical questions posed to the VE . . ., the VE’s testimony did not constitute
substantial evidence upon which the ALJ could rely.”).
The hypothetical posed by the ALJ to the VE in this case clearly did not include
all of Owens’ employment limitations as nowhere is mention made of any limitations
resulting from the significant side effects attendant to plaintiff’s chemotherapy and
scheduled radiation. Although the medical expert (“ME”), during the course of
plaintiff’s hearing, specifically testified that there was no documentation in the record
that the complications (that is, side effects) from chemotherapy had been or could be
expected to last for twelve months (Tr. 67-68) —an observation which was afforded
great weight by the ALJ (see Tr. 43-44)—the ME also unequivocally recognized that
plaintiff would be undergoing radiation therapy which could apparently last for at least
another 40 days (Tr. 68), if not longer.7 Plaintiff’s chemotherapy treatments, of course,
were not complete at the time of the hearing and were not expected to be complete for
at least four weeks after the hearing. (Tr. 57.) When these facts are combined with the
ALJ’s failure to inquire of the ME about the standard “break” between completion of
chemotherapy and the start of radiation therapy,8 or questioning the plaintiff about
whether her radiation was to be in accordance with the “standard protocol,” the
undersigned cannot find that the ALJ’s failure to incorporate into her hypothetical
limitations attendant to cancer treatment side effects supported by substantial evidence
in a case in which the ALJ admits that plaintiff’s “status post breast cancer with
The ME’s testimony confirmed that of plaintiff that the expected side effects of
chemotherapy would include gastroenteritis, dehydration, nausea, vomiting, and
weakness/fatigue. (See Tr. 65-67.)
This Court has no way of knowing whether Owens would be on the “standard
protocol” relative to radiation treatments (see Tr. 68 (“Usually 20 treatments, so if she’s on a . . .
standard protocol, then usually 20 treatments, which are spread out over 30 days or 40 days
depending upon the various equipment used.”)), or some other more stringent protocol, again
begging the question of why the ALJ did not include in her hypothetical to the VE the
employment impact of the significant side effects of breast cancer therapy.
The ME testified that there are “significant side effects” to radiation therapy
(Tr. 68), although he did not delineate those effects beyond recognizing that his wife “died of
side effects of radiation of breast cancer.” (Id.)
mastectomy” is a severe impairment (Tr. 39 (emphasis supplied)). This particularly in
an SSI case—that is, a social security case not defined, or in any way impacted, by the
“date last insured”—in which the ALJ informed plaintiff’s counsel, albeit off-the-record
on an earlier hearing date (see Tr. 78),9 that if plaintiff amended her onset date to the
date she was diagnosed with cancer—which happened (compare Tr. 39 (recognizing an
amended onset date of January 7, 2013) with Tr. 247-248 (plaintiff amended her onset
date to January 7, 2013, the approximate date of her cancer diagnosis))—a fully
favorable decision could be reached based upon testimony from a vocational expert
regarding breaks and absences attributable to the side effects from plaintiff’s cancer
treatments (see Doc. 14, at 9; compare id. with Tr. 81 (VE’s testimony during the earlier
April 15, 2013 hearing that appears to suggest that there would be no work available for
an individual who would exceed the normal number of absences allowed per month by
employers and would require more than two 15-minute breaks per workday)). Because
breaks and absences attributable to side effects from cancer treatments would likely be
vocationally significant (see Tr. 72 (the VE’s testimony at the most recent hearing in this
regard is significantly impaired by inaudibility10)), this matter is due to be remanded for
further consideration not inconsistent with this decision.11
That a discussion occurred prior to the ALJ going on the record on April 15, 2013
cannot be gainsaid. (Tr. 78 (“The hearing is now open in the case of Quenna Owens[.] . . . This is
a videoconference hearing with the date being April 15th, 2013. The claimant is not present
today. We have a report that she is currently hospitalized due to possible breast cancer.
However, her representative . . . is present in Selma[.]”); compare id. with Tr. 82 (“ALJ: What we
will do is send an official [INAUDIBLE] letter, and we will make a decision [phonetic].”).)
This inaudibility makes it impossible for this Court to fully evaluate the ALJ’s
decision denying benefits and supports remand. Cf. Carrington v. Heckler, 587 F.Supp. 61, 61-62
(M.D. Ga. 1984) (“It is imperative that this court scrutinize the record in its entirety to determine
whether the Secretary’s decision is reasonable. Because a substantial part of the verbal
testimony is missing, the entire record is not before the court. Therefore, the court can reach no
In light of the foregoing, 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
DONE and ORDERED this the 21st day of December, 2015.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
decision on whether the Secretary’s decision was supported by substantial evidence.” (internal
citation omitted; emphasis in original)).
In addition to the foregoing, the VE’s testimony suffers from another problem. In
identifying jobs in response to the posed hypothetical, the VE identified the job of bakery
worker as unskilled light work with a DOT number of 529.687-022 (Tr. 72). However, DOT
#529.687-022 is the designation for “bulk filler,” an unskilled heavy job. See Dictionary of
Occupational Titles, 529.687-022 (4th ed. 1991). Obviously, this job is not an option for plaintiff.
On remand, the ALJ should also direct some attention to plaintiff’s alleged
depression, about which no mention is made in the administrative decision (see Tr. 39-45) but
numerous references are made in the record (see, e.g., Tr. 256, 260, 264, 268, 272, 275, 278, 281,
287, 320, 336, 340, 344, 358, 361, 377-378, 416-421 & 427), and whether there is a need to append
to the (remand) administrative decision a PTRF or incorporate into the remand decision its
mode of analysis. Compare Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005) (“We  join our
sister circuits in holding that where a claimant has presented a colorable claim of mental
impairment, the social security regulations require the ALJ to complete a PTRF and append it to
the decision, or incorporate its mode of analysis into his findings and conclusions. Failure to do
so requires remand.”) with Butler v. Astrue, 2010 WL 2584200, *3-4 (M.D. Ala. Jun. 24, 2010) (in a
case in which the ALJ made no mention of the claimant’s depression, which was diagnosed and
being treated with medication, court remanded finding even if claimant’s depression was less
than severe it was a colorable claim and, therefore, the ALJ was required to complete a PTRF
and append it to his decision, or incorporate its mode of analysis into his findings and
conclusions). It appears to this Court that the ALJ’s failure to append to her decision a PRTF, or
otherwise incorporate its mode of analysis into her decision, was clear error requiring remand.
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