Ellis v. Colvin

Filing 30

MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's application for disability is REVERSED and REMANDED under sentence four of 42:405(g) for further proceedings. Signed by Magistrate Judge Katherine P. Nelson on 11/14/17. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ELAINE DIANNE ELLIS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 17-00034-N

MEMORANDUM OPINION AND ORDER
Plaintiff Elaine Dianne Ellis brought this action under 42 U.S.C. §§ 405(g)
and 1383(c)(3) seeking judicial review of a final decision of the Defendant
Commissioner of Social Security (“the Commissioner”) denying her applications 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., and for supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. Upon
consideration of the parties’ briefs (Docs. 14, 26 1 ) and those portions of the
administrative record (Doc. 12) (hereinafter cited as “(R. [page number(s) in lowerright corner of transcript])”) relevant to the issues raised, and with the benefit of
oral argument held September 13, 2017, the Court finds that the Commissioner’s
final decision is due to be REVERSED and REMANDED under sentence four of §

With the Court’s permission (see Docs. 24, 25), Ellis filed a corrected brief (Doc. 26)
after briefing had closed. The corrected brief (Doc. 26) is deemed to supersede
Ellis’s initial brief (Doc. 13), which the undersigned has not considered herein.

1

405(g).2
I.

Background

On January 9, 2014, Ellis filed an application for SSI with the Social Security
Administration (“SSA”). On January 13, 2014, she filed an application for a period
of disability and DIB. Both applications alleged disability beginning July 29, 2013.3
After her applications were initially denied, Ellis requested a hearing before an
Administrative Law Judge (“ALJ”) with the SSA’s Office of Disability Adjudication
and Review, and a hearing was held on December 15, 2014. On April 27, 2015, the
ALJ issued an unfavorable decision on Ellis’s applications, finding her “not
disabled” under the Social Security Act and thus not entitled to benefits. (See R. 33
– 50).
The Commissioner’s decision on Ellis’s applications became final when the
Appeals Council for the Office of Disability Adjudication and Review denied Ellis’s
request for review of the ALJ’s decision on November 15, 2016. (R. 1 – 6). On
January 18, 2017, Ellis filed this action under §§ 405(g) and 1383(c)(3) for judicial
review of the Commissioner’s final decision. See (Doc. 1); 42 U.S.C. § 1383(c)(3)
(“The final determination of the Commissioner of Social Security after a hearing [for
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. 27, 29).

2

“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she were insured. 42 U.S.C. §
423(a)(1)(A) (2005). For SSI claims, a claimant becomes eligible in the first month
where she is both disabled and has an SSI application on file. 20 C.F.R. § 416.202–
03 (2005).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).

3

SSI benefits] shall be subject to judicial review as provided in section 405(g) of this
title to the same extent as the Commissioner’s final determinations under section
405 of this title.”); 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
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.”).4 “In determining whether substantial evidence exists, [a

Nevertheless, “ ‘[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) (quoting
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en
banc)) (ellipsis added). Generally, claims of error not raised in the district court are
deemed waived. 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)); 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

4

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

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 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).

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. 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 and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). 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), 1382c(a)(3)(A).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
curiam) (unpublished).5
The Social Security Regulations outline a five-step, sequential
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.”).

5

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”)
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).6
“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
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.

6

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 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).
Where 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. “[W]hen 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).

“[B]ut 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.
III.

Analysis

Ellis argues that the ALJ reversibly erred, inter alia, in failing to find Ellis’s
subjective testimony fully credible as to the limiting effects of her physical
impairments. This Circuit “has established a three part ‘pain standard’ that applies
when a claimant attempts to establish disability through his or her own testimony
of pain or other subjective symptoms. The pain standard requires (1) evidence of an
underlying medical condition and either (2) objective medical evidence that confirms
the severity of the alleged pain arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain. The standard also applies to complaints of
subjective conditions other than pain.

The claimant’s subjective testimony

supported by medical evidence that satisfies the standard is itself sufficient to
support a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991) (per curiam) (citations omitted). “If a claimant testifies as to his subjective
complaints of disabling pain and other symptoms,…the ALJ must clearly ‘articulate
explicit and adequate reasons’ for discrediting the claimant's allegations of
completely disabling symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005) (per curiam) (quoting Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995)

(per curiam)). “A clearly articulated credibility finding with substantial supporting
evidence in the record will not be disturbed by a reviewing court.” Foote, 67 F.3d at
1562.
At Step Four, the ALJ summarized Ellis’s testimony of her physical
impairments as follows:
The claimant testified that she had knee and hand pain. Her feet and
hand pain were rated as an eight or nine on a pain scale of one to ten,
with ten being the most severe. She claimed that due to sleep apnea,
she could sit down and fall asleep anywhere. She also provided her
physical limitations. She could not lift anything over three to four
pounds. She could not stand more than five minutes or sit more than
five or six minutes without having to get up and move around. For
example, during church services, she needed to stand up. The
claimant indicated that she was unable to tie her shoes or bathe
independently due to her physical issues.
(R. 43). The ALJ found Ellis’s “allegations not fully credible[,]” stating as follows:
The undersigned notes that the claimant experiences limitations and
some of the symptoms alleged, but not to the extent that is alleged.
In spite of the claimant’s allegations of disabling impairments, the
medical record reflects minimal medical treatment for her
impairments. For example, she was not using a CPAP machine to
treat her sleep apnea (Hearing Testimony). In spite of her allegations
of disabling pain, the claimant has not sought additional treatment for
pain including physical therapy, surgery, or treatment from a pain
clinic. While there are some allegations of a lack of insurance/funds for
medical treatment, there is no evidence of record that the claimant
attempted to obtain low-or no-cost medical care within the community.
The claimant’s failure to seek treatment for these conditions is not
consistent with her allegations of ongoing, disabling impairments and
detracts from her overall credibility regarding the extent of her
symptoms and limitations.
…
The claimant also made a number of inconsistent statements. She
testified that she had no children in the home. Yet, she reported to Dr.

Reynolds in March 2014 that she had a child (Ex. B1F/3). The
claimant reported to her psychiatrist that she had side effects from her
Pristiq medication. Yet in the same month, the claimant reported to
her therapist that she was experiencing no mediation side effects (Ex.
B7F). Although the inconsistent information provided by the claimant
may not be the result of a conscious intention to mislead, nevertheless
the inconsistency suggests that the information provided by the
claimant generally may not be entirely reliable.
The claimant’s history of conservative treatment and the relatively
mild objective findings – all suggest that limiting her to a range of
light exertion is appropriate.
Additionally, this evidence also
demonstrates that claimant’s allegations appear somewhat more
excessive than the record can support.[7]
(R. 45).

Ellis argues that the ALJ’s credibility finding is not supported by

substantial evidence. The undersigned agrees.
“The ALJ may consider the level or frequency of treatment when evaluating
the severity of a claimant's condition, but the regulations specifically prohibit
drawing ‘any inferences about an individual's symptoms and their functional effects
from a failure to seek or pursue regular medical treatment without first considering
any explanations that the individual may provide.’ ” Henry v. Comm'r of Soc. Sec.,
802 F.3d 1264, 1268 (11th Cir. 2015) (per curiam) (quoting Social Security
Regulation 96–7p (SSR 96–7p) at 7).

Therefore, “[w]hen the ALJ ‘primarily if not

exclusively’ relies on a claimant's failure to seek treatment, but does not consider
any good cause explanation for this failure, this court will remand for further
consideration.

Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (per

The ALJ further stated that his credibility determination was “also largely
consistent with medical opinions.” (R. 45). However, the ALJ later acknowledged
“that there were no physical functional opinions provided within the record.” (R. 46
(emphasis added)).

7

curiam) (internal quotation marks omitted); accord Beegle v. Soc. Sec. Admin.,
Comm'r, 482 Fed. Appx. 483, 487 (11th Cir. 2012) (per curiam). However, if the
ALJ’s determination is also based on other factors, such as RFC, age, educational
background, work experience, or ability to work despite the alleged disability, then
no reversible error exists. Ellison, 355 F.3d at 1275.” Id.
Relevant here, the Eleventh Circuit has held that
poverty excuses noncompliance. See, e.g., Lovelace[ v. Bowen], 813 F.2d
[55,] 59[ (5th Cir. 1987)] (“To a poor person, a medicine that he cannot
afford to buy does not exist”); Lovejoy v. Heckler, 790 F.2d 1114, 1117
(4th Cir. 1986) (failure to follow prescribed treatment does not
preclude reaching the conclusion that a claimant is disabled when the
failure is justified by lack of funds); Dover v. Bowen, 784 F.2d 335, 337
(8th Cir. 1986) (“the ALJ must consider a claimant's allegation that he
has not sought treatment or used medications because of lack of
finances”); Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985)
(inability to afford surgery does not constitute an unjustified refusal
and does not preclude recovery of disability benefits). Thus while a
remediable or controllable medical condition is generally not disabling,
when a “claimant cannot afford the prescribed treatment and can find
no way to obtain it, the condition that is disabling in fact continues to
be disabling in law.” Taylor v. Bowen, 782 F.2d 1294, 1298 (5th
Cir.1986) (footnote omitted).
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988). Accordingly, “when an
ALJ relies on noncompliance as the sole ground for the denial of disability benefits,
and the record contains evidence showing that the claimant is financially unable to
comply with prescribed treatment, the ALJ is required to determine whether the
claimant was able to afford the prescribed treatment.” Ellison, 355 F.3d at 1275
(citing Dawkins, 848 F.2d at 1214).
It is apparent here that ALJ’s credibility determination was based primarily
on Ellis’s perceived “minimal”/“conservative” medical treatment for her physical

impairments, in particular her failure to use a CPAP machine to treat her sleep
apnea. (R. 45). However, the ALJ acknowledged that there “are some allegations of
a lack of insurance/funds for medical treatment” (R. 45), and Ellis’s brief cites
multiple instances in the administrative record indicating Ellis’s inability to pay for
treatment, particularly a CPAP machine.

(See Doc. 26 at 4, 11 (citing R. 65

(Hearing Testimony: “Q[:] And so you can’t get another CPAP machine? A[:] Exact - it’s the insurance.”); 256 (Information provided by Ellis on SSA Function ReportAdult: “I have no insurance and the clinic helps me get my medicine…I can’t pay for
sleep apnea treatment.”); 359 (8/4/2014 psychiatric notes of Dr. Donahue: “client has
been diagnosed with severe sleep apnea, but is not using C-PAP or other device due
to lack of insurance”); 371 (5/27/2014 notes of Dr. Howard: “Clt reports several
stressors including financial hardship, inability to work due to sleep disorder &
health problems that need attention, but lacks insurance.”); 376 (10/8/14 notes from
Cahaba Mental Health Center (“Clt reports having problems financially, trying to
afford medication for diabetes.”); 378 (12/1/2014 report of Dr. Hodo: “She has a sleep
problem, and has been prescribed a CPAP however she has no insurance and no
money therefore she can not use the CPAP.”))).
Nevertheless, finding that there was “no evidence of record that [Ellis]
attempted to obtain low-or no-cost medical care within the community[,]” the ALJ
concluded that Ellis’s “failure to seek treatment…is not consistent with her
allegations of ongoing, disabling impairments and detracts from her overall
credibility…” (R. 45). However, the ALJ cited no record evidence to support a

finding that low- or no-cost medical care was available to Ellis for her physical
impairments; his mere speculation as to the existence and availability of such care
is not evidence at all, much less substantial evidence.

Moreover, the ALJ

determined that Ellis had failed to pursue medical treatment and that her claims of
poverty did not excuse this failure because she…failed to show that she pursued
medical treatment.

Given this circular reasoning and the lack of any record

evidence indicating alternative medical care was available to Ellis, the undersigned
finds that the ALJ’s rejection of Ellis’s poverty as good cause for failure to pursue
medical treatment is not supported by substantial evidence.8
While the ALJ considered two other factors in making his credibility
determination, those factors, even considered in the aggregate, do not constitute
substantial evidence that would excuse the ALJ’s failure to properly consider Ellis’s
poverty as good cause for failure to seek treatment. The ALJ claimed “a number of

Cf. Henry, 802 F.3d at 1269 (“The ALJ's determination that Henry’s 2012
testimony is not credible is not supported by substantial evidence because the ALJ
failed to fully and fairly develop the record with respect to Henry's ability to pursue
a more rigorous course of treatment. Here, the ALJ discredited Henry's testimony
for the same reasons that he gave little weight to Dr. Barber's opinion—that Henry
worked after his initial injury, received ‘conservative treatment,’ and did not take
narcotics. The ALJ had an obligation to ‘scrupulously and conscientiously probe’
into the reasons underlying Henry’s course of treatment, yet there is nothing in the
record indicating the ALJ inquired into or considered Henry’s financial ability to
seek an alternate treatment plan. Instead, the ALJ focused on the absence of
aggressive treatment as a proxy for establishing disability. Absent proper factual
development, we cannot say there is ‘such relevant evidence as a reasonable person
would accept as adequate to support [the] conclusion’ that Henry’s testimony is not
credible. See Winschel, 631 F.3d at 1178 (internal quotation marks omitted).
Furthermore, in the absence of additional information regarding Henry's financial
ability to seek alternate treatment, the ALJ could not fairly assess the severity of
Henry’s back pain and potential disability.” (citation omitted)).

8

inconsistent statements” by Ellis, but only specifically noted two.

As a

representative sample, they are insubstantial as evidence weighing on credibility.
First, the ALJ noted that Ellis’s testimony at the ALJ hearing that she had no
children in the home (see R. 58) was inconsistent with the notation by consultative
examining psychologist Dr. Reynolds in his March 2014 report that Ellis had a
child. However, the undersigned agrees with Ellis that such inconsistency appears
to be the fault of Dr. Reynolds, as his report first notes that Ellis “has no children”
but then later states that Ellis “has delivered her baby.” (R. 337 – 338 [SSA Ex.
B1F, pp. 2 – 3]). The ALJ’s decision to adversely attribute this inconsistency to
Ellis is not supported by the record.
Second, the ALJ claimed that Ellis made inconsistent statements to her
medical care providers regarding medication side effects. The ALJ cites to SSA
Exhibit B7F, which consists of an immaterial cover letter and two medical reports
dated 12/9/14: a report by a psychiatrist noting that Ellis “reports she is still
experiencing nervousness and palpitations since changing to Prozac” (R. 383), and a
“progress note” by a therapist conclusorily checking “no” for “side effects from
medications” (R. 384).

Any inconsistency between these two statements is

minimal;9 it certainly does not substantially show that Ellis “affirmatively stated
she had no medication side effects, despite stating the opposite to her psychiatrist,”
as the Commissioner suggests (see Doc. 14 at 9).

Indeed, the psychiatrist’s report also notes that Ellis had “no psychosis, no suicidal
or homicidal ideation[,]” no “delusions” or “hallucinations,” and “good” insight and
judgment. (R. 383).

9

The ALJ also noted, at the end of his credibility determination, that Ellis’s
testimony was not supported by “the relatively mild objective findings,” but the ALJ
failed to cite any specific examples in the record with regard to Ellis’s physical
impairments. Particularly in light of the inadequacy of the other factors the ALJ
relied on in making his credibility determination, as explained above, this
conclusory statement does not amount to a clearly and explicitly articulated reason
for discrediting Ellis’s subjective complaints. Dyer, 395 F.3d at 1210. See also id.
(“The credibility determination does not need to cite particular phrases or
formulations but it cannot merely be a broad rejection which is not enough to enable
the district court or this Court to conclude that the ALJ considered her medical
condition as a whole.” (quotations omitted)).

Because the undersigned finds

inadequate the ALJ’s credibility determination as to Ellis’s subjective complaints
regarding her physical impairments, the Commissioner’s final decision denying
Ellis’s applications for benefits is due to be REVERSED and REMANDED under
sentence four of § 405(g).
Ellis requests that the Court “[r]emand with an award of benefits,” and only
requests a remand for further proceedings in the alternative. Generally, remand to
the Commissioner for further proceedings “is warranted where the ALJ has failed to
apply the correct legal standards.” Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.
1993). While this Court may enter an order “awarding disability benefits where the
[Commissioner] has already considered the essential evidence and it is clear that
the cumulative effect of the evidence establishes disability without any doubt[,]”

id., Ellis has failed to convince the undersigned that this standard is met here.10
Moreover, the Court is ordering remand because the Commissioner failed to make a
sufficient credibility determination; generally, “credibility determinations are the
province of the ALJ.” Moore, 405 F.3d at 1212. Accordingly, the undersigned finds
it appropriate in this case to remand for further proceedings.11

Compare Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991) (“The
credibility of witnesses is for the Secretary to determine, not the courts…The
decision of the Secretary here, however, rests not so much on the credibility of the
‘history of pain; presented by Carnes, as on the adoption of a legal standard
improper under Listing 10.10(A). []The record in this case is fully developed and
there is no need to remand for additional evidence. Based on the facts adduced
below and after application of the proper legal standard, we hold that claimant met
the requirements of Listing 10.10(A) as early as 1982.”), with Broughton v. Heckler,
776 F.2d 960, 962 (11th Cir. 1985) (per curiam) (“Though we have found that the
ALJ erred in his application of the legal standards, at this time we decline to enter
an order requiring entitlement to disability benefits. While it is true that the
opinions of Drs. Todd and Raybin provide strong evidence of disability, it is at least
arguable that the report of Dr. Morse is to the contrary. Consequently, it is
appropriate that the evidence be evaluated in the first instance by the ALJ
pursuant to the correct legal standards.”), and Hildebrand v. Comm'r of Soc. Sec.,
No. 6:11-CV-1012-ORL-31, 2012 WL 1854238, at *7 (M.D. Fla. May 4, 2012) (“The
errors noted here compel a return of the case to the Commissioner to evaluate the
evidence and make findings in the first instance. For the reasons set forth above,
the Court finds that certain of the conclusions of the ALJ were not made in
accordance with proper legal standards and are not supported by substantial
evidence. The Court does not find that only one conclusion can be drawn from the
evidence; but that the conclusion that was drawn did not meet the standard of
review. Under such a circumstance, it would not be appropriate for this Court to
substitute its opinion of the weight to be given the evidence for that of the
Commissioner. While the Court has the power to do just that in an appropriate
case, the Court finds this is not such a case.”), report and recommendation adopted,
No. 6:11-CV-1012-ORL-31, 2012 WL 1854249 (M.D. Fla. May 21, 2012).
11 At oral argument, counsel for Ellis expressly withdrew her claim that the ALJ
failed to develop the record by not ordering a consultative examination. Having
considered Ellis’s remaining claims of error, the undersigned finds it unnecessary to
address them in light of the determination that remand is appropriate on the
grounds addressed herein.
10

IV.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued November 15, 2016, denying Ellis’s
applications for a period of disability, DIB, and SSI 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 proceedings consistent with this decision.

This

remand under sentence four of § 405(g) makes Ellis 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 Ellis be awarded
Social Security benefits on the subject applications following this remand, the Court
hereby grants Ellis’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.12 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
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.”).

12

the latest-dated notice.
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 14th day of November 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE