Wood v. Commissioner of Social Security
OPINION AND ORDER adopting 24 Report and Recommendations; overruling 25 Objection. The Decision of the Commissioner is reversed and remanded for the purposes set forth in the Opinion and Order. The Clerk enter judgment accordingly and close the file. Signed by Judge John E. Steele on 9/15/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TAMARA LEE WOOD,
Case No: 2:15-cv-437-FtM-99CM
OPINION AND ORDER
Magistrate Judge Carol Mirando’s Report and Recommendation (Doc.
#24), filed on August 2, 2016, recommending that the Decision of
the Commissioner be reversed and remanded with instructions to the
The Commissioner filed an Objection to the Report
and Recommendation (Doc. #25) on August 12, 2016.
not file a response, and the time to respond has expired.
The Court reviews the Commissioner’s decision to determine if
it is supported by substantial evidence and based upon proper legal
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)).
Substantial evidence is more than a scintilla
but less than a preponderance, and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing
preponderates against the Commissioner’s findings, the Court must
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
The Court does
not decide facts anew, make credibility judgments, reweigh the
evidence, or substitute its judgment for that of the Commissioner.
Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (citing Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004)).
The Court reviews the Commissioner’s
conclusions of law under a de novo standard of review.
Comm’r of SSA, 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin,
894 F.2d at 1529).
Magistrate Judge Findings
Linguar’s conclusions were inconsistent with his own treatment
inconsistent with those of other medical sources.
Judge found that the ALJ failed to articulate “with sufficient
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(Doc. #24, p. 20.)
As a result, plaintiff’s RFC was not found be
supported by substantial evidence.
The Magistrate Judge further found that the ALJ’s decision to
accord great weight to Dr. Blum’s findings, without also discussing
the impact of later evidence on Dr. Blum’s findings (whether
supportive or contradictory) and also without indicating why the
unsupported by substantial evidence.
Third, the Magistrate Judge found that the ALJ improperly
discounted the weight of Dr. McAndrew’s opinion partly based on
plaintiff’s lack of treatment without stating whether the ALJ
considered plaintiff’s record evidence of an inability to pay as
an excuse for noncompliance.
The Magistrate Judge also found that
the ALJ’s RFC finding was unsupported by substantial evidence
because there was no explanation as to why plaintiff’s presentation
at the examination caused the ALJ to reduce the weight allotted
The Magistrate Judge further found that on remand the ALJ
should be required to state with specificity whether plaintiff is
able to perform simple, repetitive tasks, and to also reconsider
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As a result of finding that the RFC was
unsupported by substantial evidence, the Magistrate Judge found
that a new hypothetical question must be posed to the vocational
expert that includes all of plaintiff’s limitations.
Objections of Commissioner
The Commissioner argues that remand is not required for the
ALJ to fully explain the weight given to the treating physician,
The Commissioner argues that it is sufficiently
clear that the July 25, 2012 treatment notes were considered in
discounting the opinion of Dr. Lingaur.
(Doc. #25, p. 3.)
same arguments were raised before the Magistrate Judge.
#24, pp. 17-18.)
The ALJ acknowledged the July 25, 2012 visit,
including that Dr. Lingaur’s inspection showed plaintiff’s abdomen
(Doc. #16-2, Tr. 15.)
The ALJ summarized Dr.
Lingaur’s opinion that plaintiff was unable to work but gave it
little weight, “as it is not consistent with relatively benign
(Id., Tr. 17.)
It is unclear how the ALJ
provides a summary of inconsistencies in its Memorandum in Support
of the Commissioner’s Decision, Doc. #23, pp. 7-8, but the Court
cannot determine if the ALJ’s good cause finding to not grant Dr.
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Linguar substantial or considerable weight was in any way based on
these inconsistencies because the ALJ did not list them.
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(reasons for disregarding a treating physician’s opinion must be
See also Baker v. Comm'r of Soc. Sec., 384
F. App'x 893, 896 (11th Cir. 2010) (the Court may not consider
“post hoc rationalizations for agency actions”); Watkins v. Comm'r
of Soc. Sec., 457 F. App'x 868, 872 (11th Cir. 2012) (“We cannot
affirm based on a post hoc rationale that “might have supported
evidence, the objection will be overruled.
The Commissioner argues that the ALJ explained the weight
given to Dr. Blum, and that the ALJ explained why the later
considered the opinion of Dr. Blum, and stated: “I give Dr. Blum's
opinion great weight, as he was able to review the entire record
available to him at the time and it is consistent with the finding
of full strength and reflexes.”
(Doc. #16-2, Tr. 17.)
considered evidence post-Dr. Blum’s opinion, and the Court agrees
with the Magistrate Judge that the ALJ considered the entire
(Doc. #24, p. 23.)
In considering the Commissioner’s
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In Cooper, the ALJ determined that
plaintiff was actually more limited than what the opinion of the
non-examining doctor concluded, and therefore the court found that
the ALJ did not give undue weight to the opinion of the nonexamining doctor.
The court further found that any undue reliance
on the non-doctor decision maker was harmless because the ALJ had
access to the entire record and claimant Cooper’s testimony in
making the ultimate determination.
Cooper v. Comm'r of Soc. Sec.,
521 F. App'x 803, 807 (11th Cir. 2013).
In Russell, the ALJ relied
solely on a state agency doctor’s opinion rendered nearly 3 years
before the ALJ’s decision.
The court found that the ALJ erred by
not explaining why the later 3 years of evidence were irrelevant
to, or consistent with, that opinion.
Supp. 2d 1355, 1378 (N.D. Ga. 2010).
Russell v. Astrue, 742 F.
There is no dispute that the
record was fully reviewed, however the ALJ must still articulate
supported by sufficient evidence to support the conclusion.
e.g., Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (The
existence of the fact to be established, [ ] and such relevant
evidence as a reasonable person would accept as adequate to support
the conclusion." (citation omitted)); Moore v. Barnhart, 405 F.3d
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1208, 1211 (11th Cir. 2005) (same).
The Court agrees that ALJ
failed to articulate how the later evidence in the record supported
Dr. Blum’s opinion.
Therefore, the objection is overruled.
several cases about evaluating credibility and noncompliance due
to inability to pay, but that those cases are irrelevant to the
ultimate issue of whether ALJ properly evaluated Dr. McAndrew’s
The objection will be overruled.
The ALJ gave the
opinion moderate weight and then rejected the opinions finding
that plaintiff was not “limited to this extent based on a lack of
mental health treatment and her presentation at the consultative
(Doc. #16-2, Tr. 18.)
The ALJ made her own
negative inference without considering good cause explanations, or
articulating the weight given to the negative inference.
requires a remand for further consideration.
Henry v. Comm'r of
Soc. Sec., 802 F.3d 1264, 1268 (11th Cir. 2015).
After an independent review and as discussed above, the Court
agrees with the findings and recommendations in the Report and
Accordingly, it is now
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The Report and Recommendation (Doc. #24) is accepted and
adopted by the Court.
The Commissioner's Objection (Doc. #25) is OVERRULED.
The Decision of the Commissioner of Social Security is
reversed and the matter is remanded to the Commissioner of Social
Security pursuant to sentence four of 42 U.S.C. § 405(g) so that
the Commissioner can: (a) sufficiently explain the weight accorded
to each of the medical providers and non-examining consultants;
hypothetical to a VE consistent with the RFC findings; and (d)
make any further determinations consistent with this Report and
Recommendation, or in the interest of justice.
The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2016.
Hon. Carol Mirando
U.S. Magistrate Judge
Counsel of Record
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