Allen v. Colvin
MEMORANDUM OPINION AND ORDER that this action be REVERSED and REMANDED for further administrative proceedings consistent with this opinion, to include at a minimum, a supplemental hearing for the gathering of evidence regarding plaintiff's ability to work. Signed by Magistrate Judge Bert W. Milling, Jr on 1/29/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Social Security Commissioner,
CIVIL ACTION 15-0399-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling denying a claim for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 14).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order judgment in accordance with 28 U.S.C. §
636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc.
Oral argument was waived in this action (Doc. 20).
considering the administrative record and the memoranda of the
parties, it is ORDERED that the decision of the Commissioner be
REVERSED and that this action be REMANDED for further
administrative proceedings not inconsistent with the Orders of
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
evidence requires “that the decision under review be supported
by evidence sufficient to justify a reasoning mind in accepting
it; it is more than a scintilla, but less than a preponderance.”
Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting
Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
twenty-six years old, had completed high school and some college
education (Tr. 136), and had previous work experience as a
cashier and a sewing machine operator (Tr. 149).
disability due to scoliosis, neck pain, chronic pain, nerves,
and tingling/numbness in her upper extremities (Doc. 13).
The Plaintiff applied for disability benefits and SSI on
May 18, 2012, alleging a disability onset date of April 22, 2012
(Tr. 105, 252-59).
An Administrative Law Judge (ALJ) denied
benefits, determining that, although she could not return to her
previous work, there were light and sedentary jobs that Allen
could perform (Tr. 105-15).
Plaintiff requested review of the
hearing decision (Tr. 70-72), but the Appeals Council denied it
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Allen alleges
(1) The ALJ’s residual functional capacity (hereinafter
RFC) is not supported by the evidence; and (2) the ALJ did not
properly consider her pain (Doc. 14).
Defendant has responded
to—and denies—these claims (Doc. 15).
The Court will address
only Allen’s first claim, i.e., that the ALJ’s RFC is not
supported by the evidence.
On June 24, 2013, at the request of the Social Security
Administration, Dr. R. Rex Harris examined Allen for complaints
of pain in her neck and lower back (Tr. 504-05).
He noted full
range of motion (hereinafter ROM) of the neck, shoulders,
elbows, wrists, fingers, hips, knees, and ankles; grip was
Sensation was normal and reflexes were 2+
and equal in the upper and lower extremities; muscle groups were
five out of five.
Lumbar flexion was 70º, extension was 15º,
and lateral motion was 15º; there was negative straight leg
raising bilaterally to 90º.
Gait was normal; Allen could toe
and heel walk and squat and arise.
X-rays of the thoracic and
lumbar spine revealed minimal curvature with well-preserved
joint spaces; Harris opined that Plaintiff was capable of
performing sedentary work.
The Doctor completed a physical
capacities evaluation in which he indicated that Allen could
lift and carry up to twenty pounds occasionally; she could sit,
stand, and walk, each, for twenty minutes at a time, but could
sit four, stand three, and walk one hour, total, during an
eight-hour day (Tr. 506-07).
Dr. Harris indicated that Allen
could use both hands occasionally to reach, handle, finger,
feel, and push or pull; Plaintiff could use both feet
occasionally for operating foot controls (Tr. 508).
further found Plaintiff could frequently climb stairs and ramps,
could never climb ladders or scaffolds, and could occasionally
balance, stoop, kneel, crouch, and crawl (Tr. 509).
occasional basis, Allen could work around moving mechanical
parts, operate a motor vehicle, work around humidity and
wetness, dust, odors, fumes and pulmonary irritants, extreme
cold or heat, and vibrations; she could never work around
unprotected heights (Tr. 510).
The Doctor found that Plaintiff
could shop, walk a block on rough or uneven surfaces without
assistance at a reasonable pace, use public transportation,
climb a few steps, prepare and eat a simple meal, care for her
personal hygiene, and sort, handle, and use paper/files (Tr.
Harris consistently indicated that Allen’s limitations
were due to her back pain.
At the evidentiary hearing, Allen’s Attorney posed a
hypothetical question to the Vocational Expert (hereinafter VE)
Assume and [sic] individual is capable
of sedentary work, but they can occasionally
lift and carry 20 pounds, sit, stand or walk
20 minutes at a time, sit four hours total,
stand three and walk one, can never climb
ladders, ropes or scaffolds and could only
occasionally reach, handle, finger, feel,
push, pull foot controls, balance, stoop,
kneel, or crawl, are there any jobs they
could do in the nation or the region?
What would be the main reason?
The main reason that jumps out at me is
the occasional reach, handle, finger, feel
at the sedentary level. For a worker of
this background, they just could not do
Defendant concedes, in her brief, that the limits
in the hypothetical question were those suggested by Dr. Harris
(see Doc. 15, p. 4).
In his determination, the ALJ found that Plaintiff had the
RFC to do the following:
[p]erform light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b) except the
claimant can occasionally lift and/or carry
20 pounds and frequently lift and/or carry
10 pounds. She can sit/stand at will. She
can occasionally bend, balance, stoop,
kneel, and crouch. She can never climb
ladders, ropes or scaffolds. She can
occasionally use her upper extremities and
lower extremities for pushing and/or pulling
movements. She can frequently reach,
handle, finger, and feel. She should avoid
concentrated exposure to extreme cold,
extreme heat, wetness, and humidity. She
should avoid concentrated exposure to
pulmonary irritants such as fumes, odors,
dust, and gases. She should avoid all
exposure to unprotected heights, hazardous
machinery and uneven surfaces. She would
have one unplanned absences a month.
In his determination, after summarizing the medical
evidence, the ALJ stated that he gave “substantial weight to Dr.
Harris’ assessment that the claimant [was] capable of sedentary
work in the workplace. . . . His opinion is well supported by
his own clinical examinations and testing  and is generally
consistent with the record as a whole” (Tr. 113).
statement of weight was the only one made by the ALJ about the
274 pages of medical evidence in this record.
The Eleventh Circuit Court of Appeals has stated the
What is required is that the ALJ state
specifically the weight accorded to each
item of evidence and why he reached that
decision. 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. “Unless the Secretary has
analyzed all evidence and has sufficiently
explained the weight he has given to
obviously probative exhibits, to say that
his 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.’” Stawls v. Califano,
596 F.2d 1209, 1213 (4th Cir. 1979) (quoting
Arnold v. Secretary of HEW, 567 F.2d 258,
259 (4th Cir. 1977)).
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
In this action, the ALJ gave Dr. Harris’s opinion
Nevertheless, he did not adopt all of the
Doctor’s limitations in fashioning Allen’s RFC; as acknowledged
by Defendant, the RFC determination was more—and less—
restrictive, in different ways, than the limitations suggested
by Harris (Doc. 15, p. 5).
One difference, Plaintiff’s ability
to reach, handle, finger, and feel on an occasional versus a
frequent basis, was the difference in whether Allen could work
or not, according to the VE testimony referenced above.
The Court is aware that the ALJ was not required to adopt
all of the limitations suggested by Dr. Harris, but he did have
a duty to explain what he rejected and why.
Barnhart, 166 Fed.App’x 410, 418 (11th Cir. 2006) (citing
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)) (“The ALJ
is required . . . to state with particularity the weight he
gives to different medical opinions and the reasons why”).
ALJ has not explained why he gave substantial weight to Dr.
Harris’s opinions, but rejected some of his conclusions.
such, the Court cannot find that the ALJ’s decision is supported
by substantial evidence as it falls short of both Cowart and
In reaching this decision, the Court is not finding that
Allen is disabled or that the ALJ’s assessment is wrong.
Court merely finds that the ALJ’s decision is not supported by
the evidence cited.
As such, it is not supported by substantial
Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding Plaintiff’s ability to work.
will be entered by separate Order.
DONE this 29th day of January, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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