King v. Commissioner of Social Security

Filing 28

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for the Commissioner to reevaluate Plaintiff's claim for disability. See Opinion and Order for details. The Clerk is directed to enter judgment accordingly, and close the file. Signed by Magistrate Judge Carol Mirando on 9/8/2015. (ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DEBORAH KING,
Plaintiff,
v.

Case No: 2:14-cv-341-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Deborah King appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her claim for a period of
disability, disability insurance benefits (“DIB”) and supplemental security income
(“SSI”).

For the reasons discussed herein, the decision of the Commissioner is

reversed and this matter is remanded for further proceedings consistent with this
Opinion and Order pursuant to 42 U.S.C. § 405(g), sentence four.
I.

Issues on Appeal

Plaintiff raises five issues on appeal: (1) whether the Administrative Law
Judge (“ALJ”) properly considered Plaintiff’s right heel keloid; (2) whether the ALJ’s
determination that Plaintiff’s headaches are not a severe impairment is supported by
substantial evidence; (3) whether the ALJ’s residual functional capacity (“RFC”)
determination is supported by substantial evidence; (4) whether the ALJ erred by
failing to consult a vocational expert (“VE”); and (5) whether the case should be
remanded for evaluation by a different ALJ.

II.

Procedural History and Summary of the ALJ’s Decision

On July 29, 2010, Plaintiff filed applications for a period of DIB and SSI
alleging that she became disabled and unable to work on November 15, 2009.1 Tr.
118-21, 122-23. The Social Security Administration denied her claim initially on
December 23, 2010 and upon reconsideration on April 12, 2011. Tr. 63, 64; Tr. 65,
66. Plaintiff requested and received a hearing before ALJ Larry J. Butler on October
25, 2012, during which she was represented by an attorney.

Tr. 34-62, 94-95.

Plaintiff testified at the hearing.
On January 2, 2014, the ALJ issued a decision finding that Plaintiff is not
disabled and denying her claim. Tr. 18-27. The ALJ first determined that Plaintiff
met the insured status requirements of the Social Security Act through June 30, 2014.
Tr. 20. At step one, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since November 15, 2009, the amended alleged onset date (“AOD”).

Id.

At step two, the ALJ determined that Plaintiff has the following severe

impairments: depression and anxiety. Id. At step three, the ALJ concluded that
Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” Tr. 21.
Taking into account the effects from all of Plaintiff’s impairments, the ALJ
determined that Plaintiff has the RFC to perform a full range of work at all exertional

1

Plaintiff initially alleged that she became unable to work on January 1, 2008. Tr.
118, 122. At the hearing before the ALJ, Plaintiff’s counsel stated that she was amending
her alleged onset date to November 15, 2009. Tr. 38.

-2-

levels, but is limited to simple, routine, repetitive tasks with no interactions with the
public. Tr. 22. The ALJ found that Plaintiff’s medically determinable impairments
reasonably could be expected to cause the alleged symptoms, but her statements
concerning the intensity, persistence and limiting effects of the symptoms are not
entirely credible. Tr. 23-24. The ALJ then found that Plaintiff was not capable of
performing any of her past relevant work (“PRW”) but that there are other jobs
existing in significant numbers in the national economy that Plaintiff can perform.
Tr. 26-27. Thus, the ALJ found that Plaintiff is not disabled and denied her claim.
Tr. 27.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on May 24, 2014. Tr. 1-11, 14. Accordingly, the ALJ’s
January 2, 2014 decision is the final decision of the Commissioner. Plaintiff filed an
appeal in this Court on June 23, 2014. Doc. 1.
III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected either to result in death or last for a
continuous period of not less than twelve months.

42 U.S.C. §§ 416(i)(1),

423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).

The Commissioner has

established a five-step sequential analysis for evaluating a claim of disability. See
20 C.F.R. §§ 404.1520, 416.920.

The claimant bears the burden of persuasion

-3-

through step four, and, at step five, the burden shifts to the Commissioner. Bowen

v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
“The district court must view the record as a whole, taking into account
evidence favorable as well as unfavorable to the decision.” Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995); see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992) (stating that the court must scrutinize the entire record to determine the
reasonableness of the factual findings). The scope of this Court’s review is limited
to determining whether the ALJ applied the correct legal standards and whether the
findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077,
1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)).
Substantial evidence is “more than a scintilla, i.e., evidence that must do more than
create a suspicion of the existence of the fact to be established, and such relevant
evidence as a reasonable person would accept as adequate to support the conclusion.”

Foote, 67 F.3d at 1560 (internal citations omitted); see also Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something
more than a mere scintilla, but less than a preponderance”) (internal citation
omitted).

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g).
Accordingly, where the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the reviewer would have reached a
contrary result as finder of fact, and even if the reviewer finds that the preponderance
of the evidence is against the Commissioner’s decision. Edwards v. Sullivan, 937

-4-

F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.
1991).
IV.

Discussion

a. Whether the ALJ properly considered Plaintiff’s right heel keloid
Plaintiff first argues that the ALJ erred by failing to adequately consider that
Plaintiff’s right heel keloid, diagnosed by her treating physician, Dr. Scott Fields,
limits her ability to stand and walk, and therefore Plaintiff is more limited than
determined by the ALJ. Defendant acknowledges that the ALJ did not specifically
mention Plaintiff’s diagnosis of right heel keloid, but contends that the ALJ
considered Dr. Fields’ diagnosis and opinion regarding Plaintiff’s limitations and
properly determined that Dr. Fields’ opinion identifying additional limitations was
not supported by the record and therefore entitled to little weight.

Defendant

further asserts that the record reflects the ALJ considered Plaintiff’s foot impairment
and properly rejected Dr. Fields’ opinion, and therefore any failure to specifically
mention keloid was harmless.
Under the Regulations, opinions of examining sources usually are given more
weight than nonexamining source opinions, and opinions of treating sources are given
greater weight “since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture” of a claimant’s impairments. 20
C.F.R. §§ 404.1527(c)(1), 416.927(c). Examining source opinions are evaluated based
upon the degree to which they consider all relevant evidence in the record, including
the opinions of other medical sources. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).

-5-

By contrast, “because nonexamining sources have no examining or treating
relationship with [a plaintiff], the weight [the Social Security Administration] will
give their opinions will depend on the degree to which they provide supporting
explanations for their opinions.” 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Any
medical source opinion may be discounted when the opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or if the opinion is
inconsistent with the record as a whole. SSR 96-2p; Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1159-60 (11th Cir. 2004). Moreover, opinions on some issues, such as
a claimant’s ability to work and whether she is disabled, are reserved exclusively for
the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d). Opinions on these issues,
even when offered by treating physicians, are not entitled to controlling weight. SSR
96-5p.
Records of Dr. Fields dated July 7, 2010 state that Plaintiff had a “painful
lesion on heel [for] many years” and include a diagnosis of right heel keloid. Tr. 21920. The records also state that Plaintiff declined a referral to a podiatrist. Tr. 220.
Records from a January 17, 2011 visit to Dr. Fields also state that “there is a 2cm
keloid type lesion over posterior heel, this is [sic] been present for over 2 decades” and
acknowledged that Plaintiff suffers from foot pain. Tr. 290. April 4, 2011 records
state that Plaintiff’s gait and station were intact with no motor deficits and Plaintiff
does not require an assistive device, but note that the heel keloid causes pain and
Plaintiff cannot afford treatment. Tr. 301. Dr. Fields also completed a physical
capacity evaluation on September 22, 2012, in which he opines that Plaintiff can

-6-

stand or walk only for one hour at a time and for a total of two hours during an eight
hour workday. Tr. 340-41. At the hearing, Plaintiff testified that she was unable
to continue her employment with Burlington Coat Factory because of the painful
growth on her foot which prevents her from wearing dress shoes and makes standing
difficult. Tr. 44. Plaintiff also testified that an injury to her hips causes pain and
prevents her from being able to stand or walk for long periods. Id.
The ALJ’s opinion states that Plaintiff “has a growth on her foot and can no
longer wear dress shoes. She has a hard time standing. She had a hip injury and
has pain all the time.” Tr. 22. The ALJ further acknowledged Plaintiff’s right foot
growth, noting that “[s]he just lives with it” and “[i]t caused problems when she
worked.”

Tr. 23.

The ALJ’s opinion states that he “considered several

questionnaires completed by the claimant’s primary care physician, Dr. Fields, but
has given these opinions no weight.” Tr. 25 (citations omitted). The ALJ references
Dr. Fields’ opinions as to mental work-related functional limitations, but ultimately
discounted those opinions because “Dr. Fields is not a psychiatrist or psychologist –
he is an internist” and determined they are inconsistent with other records from Lee
Mental Health, which state that Plaintiff’s condition improved with medication. Id.
The ALJ further noted that Dr. Fields opined Plaintiff is limited to less than
sedentary work, but found this opinion inconsistent with the ALJ’s own finding that
Plaintiff has no severe physical impairments. Id. The ALJ highlighted Dr. Fields’
opinion with respect to headaches and fatigue, noting that these would not limit
Plaintiff to less than sedentary work, and degenerative joint disease, but found that

-7-

this diagnosis was not confirmed elsewhere in the medical evidence of record. Id.
Notably, the ALJ did not mention Plaintiff’s heel growth in this discussion, whether
by specific reference to “keloid” or otherwise.
Under the Regulations, the ALJ properly could assign Dr. Fields’ opinion
reduced weight if it was inconsistent with other medical evidence in the record, the
doctor’s own records, or Plaintiff’s testimony.

20 C.F.R. §§ 404.1527(c)(3),

416.927(c)(3); SSR 96-2p; Crawford, 363 F.3d at 1159-60; Magill v. Comm’r of Soc.

Sec., 147 Fed. Appx. 92, 94 (11th Cir. 2005) (“[A]n ALJ need not give a treating
physician’s opinion considerable weight if the applicant’s own testimony regarding
her daily activities contradicts that opinion.”) (citing Phillips v. Barnhart, 357 F.3d
1232, 1241 (11th Cir. 2004)). Here, however, Dr. Fields’ treatment records reflect
that Plaintiff had a painful heel keloid, and he determined – albeit on a conclusory
checklist form – that Plaintiff’s physical limitations limited her to standing and
walking only for one hour at a time and a total of two hours in an eight hour workday.
Tr. 341. His opinion is consistent with Plaintiff’s testimony that she was unable to
continue her most recent employment in part because she has difficulty standing due
to her foot pain.
Upon review of the entire record, the Court is not convinced that the ALJ
articulated sufficient good cause for rejecting the opinion of Dr. Fields. While this
alone may not have warranted remand, when combined with the other asserted errors
as discussed more fully elsewhere in this Opinion and Order, the Court cannot

-8-

affirmatively conclude that substantial evidence supports the ALJ’s opinion as a
whole.

b. Whether substantial evidence supports the ALJ’s determination that
Plaintiff’s headaches are not a severe impairment
Plaintiff also argues that the ALJ’s determination that Plaintiff’s headaches
are not severe is not supported by substantial evidence, because the record
establishes that they frequently interfered with Plaintiff’s ability to function.
Plaintiff further argues that the ALJ’s reliance on her failure to seek treatment from
a specialist with respect to her headaches was error, because the record also includes
several notations that Plaintiff has no insurance and cannot afford specialists or
additional testing. Defendant contends that the ALJ did not err by finding Plaintiff’s
headaches are nonsevere because Plaintiff failed to meet her burden to provide
evidence showing they are severe. Defendant further argues that the ALJ’s failure
to find Plaintiff’s headaches severe, if error, is harmless, because the ALJ found that
Plaintiff had other severe impairments at Step two and therefore proceeded with the
sequential evaluation process.
The Court agrees with the Commissioner’s assertion that because the ALJ
determined that Plaintiff had a severe impairment at Step two, this was sufficient to
proceed with the evaluation.

Thus, the ALJ’s failure to find that Plaintiff’s

headaches also are severe impairments, standing alone, does not warrant remand.
The ALJ’s stated reason for discounting the severity of Plaintiff’s headaches,
however, deserves further discussion. The ALJ explained that Plaintiff’s headaches
and fatigues would not limit her to less than sedentary work. Tr. 25. In support of

-9-

this conclusion, the ALJ stated, “the claimant has required only minimal medical
treatment for headaches and she has never seen a neurologist. She has also never
had a brain CT or MRI scan.” Id.
Plaintiff bears the ultimate burden of proving that she is disabled and must
furnish medical and other evidence to support such a finding.

42 U.S.C. §

423(d)(5)(a); 20 C.F.R. §§ 404.1512(a), (c), 416.912(a), (c). Accordingly, the burden to
provide evidence demonstrating the severity of each of her alleged impairments rests
with Plaintiff. Upon review of the record, Plaintiff’s treatment records from Dr. Kala
Seshadri dated as far back as 2004 reveal complaints of headaches.

Tr. 216.

Another of Plaintiff’s medical records state that her chronic headaches began in 2002.
Tr. 305.

They were described as intractable associated with photophobia and

nausea, and Plaintiff was prescribed medication. See, e.g., id. Plaintiff reported in
June 2011 that the frequency had decreased. Tr. 328. At the hearing, Plaintiff
testified that when she is unable to sleep, she gets migraines that can last up to four
days. Tr. 45-46. Plaintiff stated that she gets migraines at least twice a month and
they always last longer than one day. Tr. 47.
Plaintiff contends that the ALJ’s reliance on her failure to seek treatment from
a specialist or additional testing was improper and cannot establish substantial
evidence, because the record is replete with references to her inability to afford
specialists or other follow-up treatment.

Doc. 21 at 16.

In July 2004, an

appointment for which Plaintiff presented with complaints of headaches, Dr.
Seshadri’s notes state that Plaintiff was “getting worse because of cutting back on

- 10 -

meds, as she can’t afford it.” Tr. 216. An April 15, 2009 record from Dr. Fields
similarly states, “she has no insurance and is unemployed, so finances already limited
with regards to routine health maintenance.” Tr. 228. An April 4, 2011 record from
Internal Medicine Associates also states that Plaintiff cannot afford treatment. Tr.
301. A Psychiatric Medication Management Notice from Lee Mental Health Center,
Inc. dated February 1, 2012 also notes that Plaintiff has a “growth on foot—supposed
to see a podiatrist but cannot afford it.” Tr. 316.
The Eleventh Circuit has repeatedly held that a claimant’s inability to afford
treatment excuses noncompliance with recommended courses.

In Dawkins v.

Bowen, the court explained that when the claimant cannot afford the prescribed
treatment, and there is no other way to obtain it, she is excused from noncompliance.
848 F.2d 1211, 1213 (11th Cir. 1988). The Commissioner bears the burden of proving

unjustified noncompliance. Id. Courts in this district have previously questioned
an ALJ’s reliance on the plaintiff’s noncompliance with treatment or medication due
to an inability to pay for same. See, e.g., Zeigler v. Barnhart, 310 F.Supp.2d 1221,
1225-26 (M.D. Fla. 2004) (order adopting report and recommendation recommending
the case be reversed and remanded to the Commissioner). Other courts within the
Eleventh Circuit have relied on Dawkins to find that an ALJ’s reliance on a claimant’s
failure to obtain additional testing was error warranting remand.
In Cronon v. Barnhart, a court in the Northern District of Alabama noted that
“[t]he ALJ placed heavy emphasis on the fact that plaintiff had had no MRI or
additional testing performed, but she testified that she has not had the funds for

- 11 -

these expensive tests.” 244 F.Supp.2d 1286, 1292 n.16 (N.D. Ala. 2003). The court
continued by noting the Eleventh Circuit’s position, first set forth in Dawkins, that
poverty excuses noncompliance. Id.; see also Davis v. Astrue, 478 F.Supp.2d 1342
(N.D. Ala. 2007) (relying on Dawkins and noting the ALJ failed to consider the
plaintiff’s inability to pay for testing when citing lack of obtaining MRIs as a basis for
his credibility determination). Even where a plaintiff has demonstrated an inability
to pay for additional treatment, an ALJ’s failure to consider a plaintiff’s finances may
not be error where the objective medical evidence did not otherwise support a finding
of disability, see Belle v. Barnhart, 129 Fed. Appx. 558 (11th Cir. 2005), or the ALJ
did not base his disability determination in large part on the plaintiff’s
noncompliance, see Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003).
Here, the ALJ found that Plaintiff suffered from severe impairments at step
two, and proceeded with the sequential evaluation in accordance with the
Regulations. Thus, the ALJ’s failure to identify headaches as an additional severe
impairment, standing alone, does not constitute error. The ALJ’s reliance in part on
Plaintiff’s failure to seek treatment from a specialist or obtain additional testing
regarding her headaches, however, when combined with Plaintiff’s other assertions
of error discussed in this Opinion and Order, prevents the Court from concluding that
the ALJ’s decision as a whole is supported by substantial evidence.

c. Whether the ALJ’s RFC determination is supported by substantial
evidence
Plaintiff also asserts that substantial evidence does not support the ALJ’s
determination that Plaintiff has the RFC to perform the full range of work at all

- 12 -

exertional levels, because the ALJ failed to include limitations in walking and
standing caused by Plaintiff’s right heel keloid and fatigue. Plaintiff also argues
that, despite according great weight to the opinion of state agency consultant Maxine
Ruddock, Ph.D., the ALJ did not include the additional limitations identified by that
doctor. The Commissioner contends that the ALJ properly evaluated the medical
evidence in accordance with the Regulations, and thus was not required to include
limitations in Plaintiff’s RFC that he found were not credible. With respect to Dr.
Ruddock, the Commissioner acknowledges that the ALJ assigned great weight to the
opinion, but argues that the ALJ did not state that he was adopting Dr. Ruddock’s
opinion as the RFC. The Commissioner therefore maintains that Plaintiff failed to
meet her burden to prove that she was more limited than the ALJ’s RFC
determination.
When the ALJ finds that an impairment does not meet or equal a listed
impairment at step three, as in this case, the ALJ then will proceed to step four to
assess and make a finding regarding the claimant’s RFC based upon all the relevant
medical and other evidence in the record.
416.920(e).

Tr. 21; 20 C.F.R. §§ 404.1520(e),

The ALJ is required to assess a claimant’s RFC based on all of the

relevant evidence in the record, including any medical history, daily activities, lay
evidence and medical source statements.
416.945(a), 416.946(c).

20 C.F.R. §§ 404.1545(a), 404.1546(c),

The claimant’s age, education and work experience are

considered in determining her RFC and whether she can return to her past relevant
work, Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. §

- 13 -

404.1520(f)), and the RFC assessment is based upon all relevant evidence of a
claimant’s ability to do work despite her impairments. Phillips, 357 F.3d at 1238;

Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).

The ALJ also “must

consider all allegations of physical and mental limitations or restrictions,” not just
those determined to be severe. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2); SSR 968p; Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986). The ALJ is required to
consider the combined effects of a claimant’s alleged impairments and make specific,
well-articulated findings as to the effect of the impairments and whether they result
in disability. Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987).
Here, the ALJ determined that Plaintiff has the RFC to perform the full range
of work at all exertional levels, but is limited to simple, routine, repetitive tasks with
no interaction with the public.

Tr. 22.

In doing so, the ALJ stated that he

considered all of Plaintiff’s symptoms and the extent to which they can reasonably be
accepted as consistent with the objective medical and other evidence, including
opinion evidence, as required by the Regulations. Tr. 23; 20 C.F.R. §§ 404.1529,
416.929; SSR 96-2p; SSR 96-5p; SSR 96-6p; SSR 06-3p. The ALJ concluded that
Plaintiff is not capable of performing her PRW as a sales associate, assistant manager
and store manager given her nonexertional limitations.

Tr. 26.

The ALJ then

found that “[t]he claimant’s ability to perform work at all exertional levels has been
compromised by nonexertional limitations. However, these limitations have little or
no effect on the occupational base of unskilled work at all exertional levels.” Id.

- 14 -

The ALJ expressly stated that he considered SSR 85-15 and discussed its
relevant contents in his opinion, but determined “the evidence in this case shows that
the claimant’s documented mental limitations do not result in deficits which would
preclude the performance of competitive remunerative work requiring the ability to
understand, carry out and remember instructions; respond appropriately to
supervisors, coworkers and work situations; and deal with changes in a routine work
setting.”

Tr. 26-27.

The ALJ therefore concluded that Plaintiff could make a

vocational adjustment to other work existing in significant numbers in the national
economy. Tr. 27.
Here, it is not clear whether the ALJ sufficiently articulated reasons for
discounting the opinion of Dr. Fields, Plaintiff’s treating physician, with respect to
her right heel keloid and other alleged physical impairments. Moreover, the ALJ
rejected Dr. Fields’ opinion as to some of Plaintiff’s mental limitations in part because
he was not a psychologist or psychiatrist.

Tr. 25.

The ALJ then credited the

opinions of Dr. Ruddock—a psychiatrist—but failed to acknowledge or include the
additional nonexertional limitations she identified, such as that Plaintiff is
moderately limited in her ability to complete a normal work day and work week
without interruptions from psychologically based symptoms; to accept and respond
appropriately to criticism from supervisors; to get along with coworkers without
distracting them or exhibiting behavioral extremes; and to respond appropriately to
changes in the workplace. Tr. 252. Dr. Ruddock also noted that Plaintiff may have
occasional difficulty interacting in unfamiliar social settings and adapting to

- 15 -

unfamiliar circumstances.

Tr. 253.

Dr. Ruddock further noted that Plaintiff’s

mental health symptoms impact her consistency of performance and completion. Tr.
267.
Finally, as Plaintiff contends, the ALJ also specifically stated that he found
Plaintiff’s fatigue is a symptom of her depression rather than a separate impairment,
yet failed to include limitations from fatigue in his RFC determination in
contravention of SSR 96-8p. The ALJ stated, “[t]he undersigned finds her fatigue is
likely associated with her mental impairment . . . .” Tr. 20. Upon acknowledging
that Plaintiff’s fatigue is related to other impairments the ALJ previously determined
are severe, he was required to discuss any limitations caused by such symptoms. See
SSR 96-8p (“The RFC assessment considers only functional limitations and
restrictions that result from an individual’s medically determinable impairment or
combination of impairments, including the impact of any related symptoms.”)
(emphasis added). The ALJ failed to do so.
While Plaintiff’s arguments with respect to omissions from her RFC
individually may not have led the Court to conclude that the ALJ’s RFC
determination is not supported by substantial evidence, considering the omissions
and the record as a whole leads precisely to that conclusion. Coupled with the ALJ’s
assignment of great weight to a state agency opinion that found other nonexertional
limitations, yet failure to include those limitations in Plaintiff’s RFC or explain in
detail which specific portions of the state agency medical source’s opinions were given

- 16 -

great weight and which something less, the Court simply cannot conclude the RFC is
supported by substantial evidence.

d. Whether the ALJ erred by failing to consult a VE
Plaintiff also contends that the ALJ’s failure to adequately address and include
her additional nonexertional limitations compounded his error; specifically, his
conclusion that Plaintiff’s nonexertional limitations do not significantly erode the
occupational base led him to rely solely on the Grids in making his determination
that there are other jobs existing in significant numbers that Plaintiff can perform,
which in turn led to finding that she is not disabled. The Commissioner maintains
that the ALJ appropriately accounted for all of Plaintiff’s nonexertional limitations
that are supported by the record; but, the Commissioner suggests that if the Court is
inclined to remand the case based on the ALJ’s failure to determine Plaintiff’s
nonexertional limitations and whether they erode the occupational base, that a
remand for the ALJ to make such findings is appropriate rather than a remand with
instructions to consult a VE, or a reversal with an award of benefits. Doc. 24 at 18
n.2.
“Exclusive reliance on the grids is not appropriate either when claimant is
unable to perform a full range of work at a given residual functional level or when a
claimant has non-exertional impairments that significantly limit basic work skills.”

Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985).

“It is only when the

claimant can clearly do unlimited types of [ ] work that it is unnecessary to call a
vocational expert to establish whether the claimant can perform work which exists

- 17 -

in the national economy.” Allen v. Sullivan, 880 F.2d 1200, 1202 (11th Cir. 1989).
Thus, “[w]hen a claimant cannot perform a full range of work at a given level of
exertion or has non-exertional impairments that significantly limit basic work skills,
the preferred method of demonstrating that a claimant can perform other jobs is
through the testimony of a VE.” Smith v. Soc. Sec. Admin., 272 Fed. Appx. 789, 799800 (11th Cir. 2008) (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)). If
non-exertional impairments are minor or are found to be not credible, however, then
exclusive reliance on the grids may be appropriate. Heatly v. Comm’r of Soc. Sec.,
382 Fed. Appx. 823, 826 (11th Cir. 2010).
Based upon the Court’s conclusions that the ALJ’s assignment of reduced
weight to the opinions of Plaintiff’s treating physicians and related failure to include
or adequately address Plaintiff’s nonexertional impairments prevent the Court from
finding that the ALJ’s opinion is supported by substantial evidence, the Court
similarly is not convinced that exclusive reliance on the grids was appropriate here.
On remand, if the Commissioner finds that Plaintiff’s treating physicians’ opinions
should have been accorded more weight, that Plaintiff’s headaches are severe, or that
Plaintiff has additional exertional nonexertional limitations, then testimony from a
VE regarding whether there exists other jobs that Plaintiff can perform would be
appropriate. Because a determination whether a VE is required depends, at least in
part, upon the ALJ’s determinations with respect to the arguments addressed
throughout this Opinion and Order, the Court declines to expressly direct the
Commissioner to elicit testimony from a VE on remand. The Court will leave that

- 18 -

determination to the Commissioner after reevaluating the medical and opinion
evidence of record in accordance with the Court’s concerns expressed herein.

e. Whether the case should be remanded to a different ALJ
Finally, Plaintiff requests if the Court determine a remand to the
Commissioner is appropriate that the Commissioner be directed to assign Plaintiff’s
case to a different ALJ. The Regulations provide that an ALJ “shall not conduct a
hearing if he or she is prejudiced or partial with respect to any party or has any
interest in the matter pending for decision.” 20 C.F.R. § 404.940. Here, however,
the Court agrees with the Commissioner that Plaintiff has not shown that ALJ
Butler’s lawsuit, filed after his opinion in this case was issued and which does not
involve Plaintiff’s case, resulted in actual bias. See Doc. 24 at 19-20. Although the
Court declines to direct the Commissioner to assign this case to a different ALJ and
instead leaves that decision to the Commissioner’s discretion, in order to avoid the

appearance of bias, the Commissioner should at least consider reassigning this case
to another ALJ.
V.

Conclusion

When reviewing the final decision of the Commissioner, the Court does not
“reweigh the evidence” or “decide the facts anew” even where the evidence
preponderates against the Commissioner’s decision. Winschel, 631 F.3d at 1178;

Edwards, 937 F.2d at 584 n.3. While the Court does not conclude that any one of
Plaintiff’s asserted errors, standing alone, necessarily warrants remand, when
reviewing the record as a whole as the Court is required to do, Foote, 67 F.3d at 1560,

- 19 -

the Court simply cannot conclude that substantial evidence supports the ALJ’s
decision that Plaintiff is not disabled.
ACCORDINGLY, it is hereby
ORDERED:
1.

The decision of the Commissioner is REVERSED and this matter is

REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g),
for the Commissioner to reevaluate Plaintiff’s claim for disability, DIB and SSI
consistent with this Opinion and Order.
2.

The Clerk of Court is directed to enter judgment accordingly, and close

the file.
DONE and ORDERED in Fort Myers, Florida on this 8th day of September,
2015.

Copies:
Counsel of record

- 20 -